Industrial Relations Commission New South Wales Medium Neutral Citation: Margaret Isabel McAuliffe and Director General, Department of Premier and Cabinet, on behalf of the Depart of Attorney General and Justice (Corrective Services NSW) [2013] NSWIRComm 1015 Hearing dates: 06 - 08 March 2013 Decision date: 26 September 2013 Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal application; Bullying and Harassment claims; Refusal to participate in mediation; Refusal to attend work until grievance dealt with and outcome known to Applicant; Failure to comply with lawful direction to attend medical assessment; Legislation Cited: Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Crown Employees (Public Service Conditions of Employment) Award 2009 Public Sector Employment and Management Act 2002 Category: Principal judgment Parties: Stephen Francis McAuliffe (Applicant's son) Representation: Ms P M Wass (for the Respondent) Ms Glenn Caren Singer (for the Respondent) File Number(s): IRC 938 of 2012 DECISION Background 1Mrs Margaret Isabel McAuliffe (the Applicant) commenced full-time employment with the Respondent, Director General, Department of Premier and Cabinet, on behalf of the Department of Attorney General and Justice (Corrective Services NSW) as an Administration Assistant (Clerk Grade ¾) in January 1978 at the Probation and Parole Service District Office in Tumbarumba. She moved to the District Office in Wagga Wagga in 1992. Her employment was regulated by the provisions of the Crown Employees (Public Service Conditions of Employment) Award 2009. Chronology of Events 2Given the very long and complicated history of events in this matter, it is, in my view, helpful to set out the chronology principally from the business records supplied by Ms Glenn Caren Singer, Legal Officer, Professional Standards Branch, Corrective Services NSW, as annexures to her witness statement in the proceedings, and from the records provided by other witnesses in the proceedings, including the Applicant. 3In addition, Ms Singer attached to her statement the Applicant's Position Description as well as the Respondent's: Sick Leave Policy (operating since 1 January 2009) Managing Bullying and Harassment Policy (operating between 2004-2012) Staff Administration-Grievance Management Policy and Guidelines (operating since September 2004) Employee Health Reviews Policy 4The Applicant lodged four separate formal bullying and harassment complaints between 2003 and August 2009 against the Unit Leader, Mrs Susan Spry. 5The first complaint against Mrs Spry occurred in approximately early 2003 and was alluded to in a letter from the Applicant to Mr Denis Nickle, District Manager, Probation and Parole Service, dated 1 June 2005. The Applicant alleged that a file she was working on was "rudely snatched from my grasp because she wanted it". The Applicant stated that she was satisfied with the manner in which that complained had been dealt with by the Respondent. 6Mrs McAuliffe wrote a 1.5 page handwritten letter to Ms Spry on 31 May 2005 to explain to her the negative impact the latter's behaviour was having on her and set out the instances when she felt aggrieved by the latter's behaviour. The Applicant raised the following issues: she was left feeling uneasy, left out and distressed when Ms Spry ignored her and only spoke to her when she had to; she felt annoyed when Ms Spry made her feel that her clerical position was lowly; she felt frustrated and angry at Ms Spry's display of personal power; she felt embarrassed at Ms Spry's loud and unprofessional manner when she spoke in front of members of the public; she felt irrelevant and her contribution irrelevant when Ms Spry failed to acknowledge her contribution and made whispering remarks and innuendo; and she felt ostracised and marginalised by being excluded from conversations by Ms Spry. 7The Applicant lodged the second complaint in correspondence to Mr Denis Nickle dated 1 June 2005. The Applicant stated that she felt belittled and humiliated by a comment made by Ms Spry to a local Solicitor to the effect that "she [meaning the Applicant] wouldn't know, she is only a clerical officer". It was allegedly said in the presence of fifteen people (including representatives from a local firm of Solicitors) at the Australia Wide Biggest Morning Tea event hosted by the Respondent's district office on Thursday, 26 May 2005. Later, after the morning tea, the Applicant advised the Unit Leader that she was not feeling well and wanted to go home. She considered that Ms Spry's interjection at that stage to say, "Yes, Margie, you go home and sleep it off" was inappropriate as Ms Spry was obviously eavesdropping on her conversation with the Unit Leader despite her desk being some metres away. She set out the problems she was experiencing as follows: (a) Mrs Spry often ignored her and did not greet her when she arrived at work in the morning which made her feel uneasy, left out and distressed; (b) When she announced that she was the only one at work, Mrs Spry was ignoring the presence of clerical officers which made her feel annoyed; (c) Mrs Spry drew a fellow employee away to undertake another task when she knew that that employee was assisting her in locating something else. While she recognised that Mrs Spry had other work for that employee, she felt that Mrs Spry had "overpowered" her and that left her feeling frustrated and angry; (d) Mrs Spry had a loud conversation with another employee in the corridor which made the Applicant feel that she was being disrespectful to the clerical officers, clients and other people in the waiting room; (e) Mrs Spry does not acknowledge her with a "thank you" when she assists her with her computer issues. When she reminds Mrs Spry for the second time that a client is waiting, she replies, "I heard you the first time" although Mrs Spry had not acknowledged her the first time when she advised her that the client had arrived; (f) She was blamed for certain problems that came to light when another employee returned from leave. That was the reason why she was reluctant to assist in undertaking work of that employee when she went on leave the next time. She blamed Mrs Spry for her "whispering remarks and innuendo". She had felt "worthless" and "incompetent"; (g) She felt marginalised and ostracised when Mrs Spry spoke to other employees privately and excluded her from the conversation. She objected to Mrs Spry's rude manner in excluding her; (h) She referred to a snatching of the file episode from a few years earlier. She complained that the situation was getting worse as Mrs Spry progressed through the ranks of management; (i) She refused to accept Mrs Spry's apology holding out, instead, for a settlement that would see the above behaviour cease immediately and stay that way. In her letter to Mr Nickle the Applicant advised the following: I strongly believe other staff members have been aware for a long period of time (at least 10 years) that there has been an undercurrent of resentment and disempowerment by Sue Spry toward me on a regular basis. The incident on the morning of 26 May 2005 brought it all to the surface... She advised Mr Nickle that she consulted her Doctor on Monday 30 May 2005 who issued her with a medical certificate and advised her to claim the leave (30 May - 8 June 2005) under WorkCover as she had diagnosed high blood pressure and psychological stress and anxiety. The Applicant concluded the letter by stating that: I will not feel comfortable returning to work until I have an assurance that this harassment will cease. I await this reassurance. She concluded the letter by indicating that she wanted a quick resolution that would result in a win-win situation. 8The Applicant lodged her first workers' compensation claim which was accepted by the insurer. On 7 June 2005, Dr Pogmore, her general practitioner, diagnosed stress reaction and recommended a workplace mediation. The GIO Management Plan recommended that she consult a psychiatrist. 9On 16 June 2005, she returned to Dr Pogmore and obtained a further medical certificate (to 27 June 2005) as the mediation had not yet been arranged. 10The Applicant returned to the workplace and participated in a formal mediation process with Ms Spry on 22 June 2005 following lodgement of the second grievance. A Mediation Contract was signed by both women which contained the following points of agreement: * Margaret to be more assertive towards Sue if there is an issue. * Sue to be more open if there is an issue & be willing to address & acknowledge any workplace issues & discuss them in a respectfull [sic] manner & in a confidential manner. * Margaret will bring up issues with Sue as they arise. * Sue will include Margaret in her greetings & will respect Margaret as an important team member. * Sue will acknowledge & thank Margaret for her assistance. * Both will clarify roles & responsibilities with each other. * Sue to take clients into interview room or somewhere appropriate to speak to them rather than at front counter. * Sue to acknowledge when Margaret advises a client is present. 11The Applicant was issued with a return to work certificate on 27 June 2005 certifying her as fit to resume work immediately. 12The Applicant acknowledged that she had received encouragement and support from her work colleagues. The second grievance was also resolved in a manner satisfactory to the Applicant. 13Mr Francis Parata Woods was seconded to the position of Acting Area Manager of the Murray-Riverina cluster in the period July-September 2009. He became aware that there had been a history of problems (since at least mid-2005) in the working relationship between the Applicant and Mrs Spry. 14Mrs Spry lodged a formal complaint against the Applicant on 6 July 2009. She set out a historical background to the grievance between her and the Applicant. She criticised the fact that Mr Nickle was charged with the responsibility for the resolution of the matter in 2005 when, on his own admission to her "I do not deal with conflict very well as you know". She relevantly advised: 1.I believe the working relationship between myself (Unit Leader) and the Clerical Officer... has come to a head in that it requires resolution. I believe that this situation has been going on for a number of years without resolution. 2..... 3..... 4.further issue is the poor and unprofessional manner in which the handling of a previous bullying and harassment claim made by the same staff member was handled under the management of Denis Nickle - I am of the opinion that his action or non action was unprofessional in that the mediation process did not follow Departmental Policy and Procedure Guidelines because a) The contract had no review dates, it was never reviewed. b) The contract had no standard time frame. (end date) 5.Each time I have tried to introduce new work practices in line with my style of management, I have had the support of PPO staff members but I have been met with resistance from the clerical officer. Examples of this might be quoted 6...... I would like appropriate action to be taken to resolve this issue as the Unit Leader I am repeatedly faced with the passive and active resistance of the clerical officer in relation to any and all changes to management practices which I facilitate. 15The first task undertaken by Mr Woods in the position of Acting Area Manager on commencement on 7 July 2009 was to deal with the dispute between Mrs McAuliffe and Mrs Spry, both of whom had requested a review of the 2009 grievance in its historical context, including the mediation outcome achieved in 2005. 16Mr Woods arranged to meet with Mrs McAuliffe on 7 July 2009 at a place nominated by her and convinced her to return to work on 8 July 2009. 17Mrs McAuliffe had taken two days' off work in order to compile a third formal complaint to Frank Woods against Mrs Spry. Although the complaint was dated 7 July, it was not lodged with the Respondent until 8 July 2009. The complaint is set out in detail below: As per the advice I received from Acting Area Manager, Rita Sosic, I wish to lodge a formal complaint about the behaviour of Mrs Susan Spry: Firstly, Susan Spry joked loudly on at least three occasions with other staff members about harassment, making comments clearly within my hearing distance such as "are you harassing me?" These comments were made directly after Rita had informed her that I had been advised to lodge a complaint about her actions towards me. Given the proximity of these comments to my meeting with Rita and the history of formal proceedings between Susan Spry and myself I found these comments to be intimidating and humiliating. Secondly, Susan Spry referred to me as "anal retentive" saying "these anal retentive people" in a highly demeaning manner in front of other staff members after I had raised the issues of cleanliness in the kitchen area at the staff meeting. I found this description not only to be degrading and insulting, but totally disgusting coming from a unit leader. Thirdly, I had discussed with Rita in a meeting on Friday, 3 July that I have felt intimidated, belittled and humiliated by Susan Spry on many occasions in recent months. I have been documenting instances of Susan Spry's aggressive and manipulating behaviour and I am currently finalising a document which will be available to you upon request. After my meeting with you this afternoon, I feel confident that I can return to resume any duties tomorrow with the knowledge that I will receive an official response to my complaint from the Department, including what action is going to be taken to ensure I am not further subjugated to the above described behaviour of Susan Spry.... 18Mr Woods wrote to both women on 8 July 2009 advising that he, as Grievance Manager, "would like resolve the matter promptly, impartially, confidentially and in accordance with the principles of natural justice". As he had formed the view that the matter ought to be addressed locally because of the nature of the complaints and the fact that it appeared to be a re-ignition of the previous complaints, he advised them in that letter that "I intend to hold a conciliation/mediation session with you both with the intention of bringing this matter to a conclusion". 19Mr Woods proceeded to manage the complaint in compliance with the Corrective Services NSW Grievance Management Policy. He spent 8 July 2009 conducting interviews with Mrs Spry and Mrs McAuliffe. He discussed with Mrs Spry her complaints and the complaints lodged against her. In the discussion he held with Mrs McAuliffe, he said that he had advised her of her rights and obligations in relation to the grievance procedure, including identifying a support person. At some stage he had suggested to her a resolution via mediation but she had refused to participate in that process. 20The outcome of those discussions was an undertaking, signed by both women on 8 July 2009 and witnessed by Mr Woods, to the following effect: I acknowledge that my grievance is in the process of being investigated and reviewed, and commit to interacting with the other staff member involved in this matter in a respectful and professional manner until the matter is resolved. 21Mr Woods held a brief interview with the Applicant on 9 July 2009 to discuss desired outcomes of the dispute resolution and identification of a support person. Mrs McAuliffe nominated Mr Alex Honeykats as her support person. 22Despite that discussion and nomination, Mr Woods received correspondence from the Applicant dated 13 July 2009 in which she declined to proceed with the grievance process requesting instead: .... in writing the outcome of the investigation and any appropriate action taken in response to the issues raised in my letter of 7 July. I would appreciate that the requested response includes the Department's official position on the described behaviour of Susan Spry including any breach of privacy commitments that the investigation has revealed. Mrs McAuliffe also requested written specifics of the complaints made against her by Mrs Spry. 23Mr Woods met with the Applicant and her nominated support person, Mr Honeykats, on 17 July 2009 in order to resolve the issues. He confirmed the outcome of the meeting in correspondence to the Applicant later that day: I am writing, as requested by you, and agreed, at the meeting held between you, me and your Support Person Alex Honeykats this morning. I reiterate what I said at the meeting: (i) It concerns me greatly that the conflict between Mrs Spry and yourself has such a prolonged historical context and has never been resolved to the satisfaction of either of you; (ii) I acknowledge that the conflict has been a significant source of stress for you (and Mrs Spry); and (iii) I will address any and all issues you raise in relation to inappropriate behaviour in this workplace. I have heard clearly that you have at times felt intimidated, belittled and humiliated by some interaction between Ms Spry and yourself, and further that you are concerned about her manner of behaviour which you view on occasion as being aggressive and manipulative. As I informed you, I will continue to work towards a finalisation and resolution of this matter. I see the agreement made on 8 July when you both committed to work and interact in a professional and respectful manner as a significant starting point from which you can move forward. I will continue to monitor this and work with you both. I thank you both for your adherence to this agreement over the past two weeks. All departmental employees have the right to work in an environment free of intimidation and harassment and to be treated with dignity and respect. I give my commitment to you that I will enforce this in this workplace. As you are aware I am prepared to work through this at a pace you are comfortable with. 24In her reply letter dated 27 July 2009, Mrs McAuliffe advised the following: (a) She could not accept his letter of 17 July 2009 as a formal reply to her letter of 13 July 2009 because it did not provide an official outcome to the investigation of her original complaints against Mrs Spry; (b) She was concerned about the time taken to investigate and respond to her complaints; (c) She expected the investigation and response to entail the following: (i) An interview with herself to obtain specifics of the complaints; (ii) Interview with witnesses to verify her complaints; (iii) An interview with Mrs Spry to respond to the complaints; (iv) Appropriate action being taken by the Department against Mrs Spry for any verified behaviour contrary to Department policy; and (v) Formal advice to her of the outcome of the investigation. (d) If he was unable to meet those expectations, then the matter should be raised to the next appropriate level within the Department; (e) She was still awaiting receipt of Mrs Spry's complaints against her; (f) She could not proceed with a mediation process until the above expectations are met; and finally (g) She requested to be represented by a family member in any further meetings regarding this matter. 25Mr Woods received an email from the Applicant, dated 30 July 2009 in which she advised: Franc, I have become very frustrated and confused about what I should be doing re Sue Spry. I was going to give up and just let the whole thing die, but her behaviour yesterday was so awful and inappropriate that I feel I must continue so I am attaching my reply to your letter of 17 July 2009. 26Mrs McAuliffe left the workplace on 7 August 2009 and did not return at any time prior to the date of her dismissal. 27Mrs McAuliffe forwarded an email to Mr Woods at 11.46 am on 10 August 2009 in which she advised that she would not be attending the workplace until her issues with Mrs Spry were addressed. She advised that the harassment had continued in the previous week leaving her with no alternative but to absent herself from the work site and await his action on the matter. Again, she reminded him that she expected to receive the outcome of the investigation in writing. That email was followed up with another email at 12.20 pm in which she clarified that she wished to return to the workplace as soon as possible. 28The Applicant contended that she was mentally and emotionally unable to attend the workplace "due to the continuing inappropriate behaviour directed at me by Ms Spry and Mr Woods' failure to manage my grievance against Ms Spry in accordance with department grievance management guidelines". She wrote to Mr Woods to advise: I cannot attend the workplace until my issues with Sue are addressed. The harassment continued last week - therefore - I have no alternative but to await action on the matter. 29Mr Woods advised Mrs McAuliffe that Mrs Spry would not be at work on 12 and 13 August 2009 yet she continued to absent herself from work. Mr Woods recollected that Mrs McAuliffe continually said she could return to work when her Supervisor was there. He pointed out that he advised her, on 12 August 2009, that he would be in the office throughout the week of 17 August 2009 and yet she did not attend for work. 30The Applicant has, since 17 August 2009, refused to engage in any way with officers of the Respondent. She frequently stated that she would not return to work, or do anything else, even when directed, until the Respondent dealt with her grievance against Mrs Spry. 31The Applicant consulted Dr Robyn Pogmore on 17 August 2009. The WorkCover certificate she sent in covered the period 10 - 24 August 2009 only. The Applicant cited "harassment at work" as the cause of the injury and stated that the date of the injury was "recent weeks". She was given that week off work "until own boss returns". She was declared as "unfit to work from until own superior officer returns". She was to be reviewed on 25 August 2009. 32The Applicant lodged a workers' compensation claim on 17 August 2009 citing stress and anxiety caused by Mrs Spry's "unwanted and inappropriate behaviour". Mr Patrick McMaster, Regional Rehabilitation and Injury Management Coordinator, when dealing with the Applicant's workers' compensation claim, found no evidence to support the claim. The claim was declined by the insurer and the Applicant is currently pursuing it before the Workers' Compensation Commission. 33Mr Woods stated that, by 17 August 2009, he considered that all issues had been addressed as the complaints had been considered, the parties interviewed and the issues raised by the Applicant had been addressed appropriately by way of development sessions with Mrs Spry. He said he found no evidence to substantiate the claims. Once his formal response to the Applicant's complaint was drafted, he forwarded it to Denise Chudleigh (Ethics Officer, Corruption Prevention Branch, Probity and Staff Development Division), Russell Cary (Senior Officer, Human Resources Unit) and Julius Cordell (then Senior Manager, Staff Support Unit) for approval before providing it to the Applicant. 34He advised the Applicant of his findings in relation to her grievance by letter dated 17 August 2009. He outlined the action he had taken and noted that his preference would have been for her to attend a mediation session with Mrs Spry, a preference she had already declined. The letter was emailed to the Applicant as she still refused to return to the workplace. In his formal response, Mr Woods advised the Applicant: 1.that he had "spent time each week with Mrs Spry developing her interpersonal skills"; 2.that he did not need to interview other staff members as he had addressed her concerns with Mrs Spry and the latter had committed to improving her interpersonal skills; 3.that he had a formal interview with Mrs Spry on 8 July 2009; and 4.that Mrs Spry had acknowledged that, at times, her interpersonal skills could be misinterpreted as abrupt however reiterated that at no time was there any intention to harass or intimidate her. Also in that response, Mr Woods reminded her of his preference for mediation with him and Mrs Spry which she had declined on many occasions. He concluded the formal response by advising that, as Grievance Manager, he considered the matter concluded on the basis of the above decision but pointed out that she had the right to request a review by a more senior manager if she considered his decision to be unfair or unjust. 35Mr Woods noted that the Applicant had not made any leave arrangements. He also noted that the Applicant had not completed any leave forms and may be considered to have abandoned her employment. For that reason, he sent her an email at 1.45 pm on 17 August 2009 seeking a meeting with her, at a location outside the workplace if she wished, to facilitate her return to work. He advised her in part: I have been supportive of you in the workplace since I commenced at Wagga Wagga on 7 July and would like to continue to do so. We need to meet to sort out what type of leave you are now taking. As you have not submitted a leave form your absence could be considered an abandonment of duty and as such if it continues could jeopardise both your pay and employment. I have written a formal and final response to the grievance you initially lodged with me on 8 July and would like to discuss this with you in person. I consider the matter to now be finalised and require you to return to work. The Applicant responded at 4.38 pm promising to make contact with him soon. 36Mr Woods wrote to Mrs Spry on 18 August 2009 and reminded her of the nature of the complaints made against her by Mrs McAuliffe and further reminded her of the terms of the agreement she had signed on 8 August 2009. He emphasised his expectation that the commitment would be on-going. 37Mr Woods stated that he received an email from the Applicant at 11.55 am on 18 August 2009 in which she requested an emailed copy of the response to her grievance prior to the meeting with him. She indicated that she had a WorkCover Certificate and also pointed out that she would like to return to work as soon as possible. He responded at 12.36 pm confirming that he would email it to her as requested but pointed out that he would have preferred to hand it to her in person so that they could discuss it. 38Also on 18 August 2009, Mr Woods wrote to Mrs Spry providing a formal response to her complaint against the Applicant. (He had interviewed Mrs Spry on 8 July 2009 in the presence of her support person, Mrs MacKintosh.) Having acknowledged her grievances, he advised that he intended to address the specific incidents of resistance and poor work practice with Mrs McAuliffe upon the latter's return to the workplace. In conclusion, he advised Mrs Spry that he considered that her complaints would be best managed locally and he would take appropriate action upon Mrs McAuliffe's return to the workplace. He advised Mrs Spry that he considered the matter finalised subject to her right to seek a review by a more senior manager if she thought the decision was unfair or unjust. 39Mr Woods stated that, by 19 August 2009, the Applicant's absence was affecting all staff in that District Office. He also stated that, in his view, he had concluded the matter fairly and appropriately given the Applicant's refusal to participate in any resolution or mediation process. It appeared to him that she was simply not happy with the outcome. In the circumstances, he could not support her continued claim of harassment. He telephoned her and asked to meet with her to discuss her return to work. She replied with words to the effect "I am in the process of writing an email to you. I am not satisfied with your decision. I will only meet with you if my son is present. I will discuss this matter further with my son and get back to you". The Applicant contended that Mr Woods failed to investigate the complaint in accordance with the policy and that, he too, had acted in an inappropriate manner towards her. Mr Woods received an email from the Applicant later that day advising that she was seeking a review from more senior management and would be forwarding a document early the following week. 40Mr Woods stated that he tried, once again, on 20 August 2009 to convince the Applicant to attend a further meeting with him to resolve her issues at the workplace. She replied to the call with an email declining the offer and advising that she was in the process of preparing a submission to more senior management. Mr Woods sent an email to her in which he - recommended the Employee Assistance Provider Service to her; pointed out to her that she had not provided a medical certificate for the period 10-14 August and asked her what form of leave she wished to use to cover that absence.; sought a return to work date pointing out that her medical certificate stated that she would return when her supervisor returns and he had been at work all that week; and confirmed his continued support for her at the workplace. 41Mrs McAuliffe responded on 21 August 2009 pointing out that she was "extremely stressed so I believe at this time the best way for me to manage my stress is to remain at home". She had an appointment with her Doctor on 24 August 2009. She indicated that she would clarify the certificate as she was of the view that it covered the period 10-25 August 2009. 42The Applicant's husband dropped off two copies of a medical certificate on 24 August 2009. The Certificate, signed and dated by Dr Pogmore on 24 August 2009, stated that the Applicant was unfit for work from 10-25 August 2009. He noted someone had drawn a line through the words still appearing on the certificate "until own superior officer returns". He questioned the integrity of that certificate. He was concerned that there was no explanation as to why it took the Applicant a week to consult her medical practitioner and why the certificate was made retrospective. 43In accordance with the Policy, Mr Woods, on 28 August 2009, prepared a document for his superior officers which he titled "Grievance for Review" attached to which was a chronology of the events since he became involved in the matter. He then referred the grievance for review by senior management. Mr John Dunthorne, Assistant Commissioner- South West Regional Office, assigned the review to Regional Superintendents Richard Hoskins and Barbara Andrews. 44The Applicant formally complained to Ms Judy Windle, Executive Director Human Resources, in an 8-page letter dated 28 August 2009, about Mr Wood's alleged failure to follow procedure in managing her complaint; about his management behaviour in relation to the "manner, process and finalisation" of her formal harassment and bullying complaint against Mrs Spry; and his failure to comply with the grievance management guidelines. She stated that such failure had resulted in her refusal to accept his finalisation of her third grievance against Ms Spry. She sought a review on the following grounds: * With respect to her time off work on that occasion, * Despite the fact that she left the workplace in distress on 3 July as a direct result of Mrs Spry's ridiculing of her complaint and the grievance process, Mr Woods failed to inform her that the days off she had taken ought to be have been claimed on workers' compensation; * Mr Woods failed to advise her to consult a doctor to ensure that she was in a suitable mental condition to return to work given her "work related stress injury"; and * Mr Woods asked her to claim her absence from her pool of accumulated personal entitlements instead of advising her to obtain a WorkCover certificate for the period. * With respect to her complaint about Mrs Spry, * Mr Woods advised her on Friday, 10 July 2009 that he could not take any action against Mrs Spry because the latter had lodged a counter grievance against her. She had stressed out over the weekend as to the nature of that complaint. She wrote to Mr Woods on Monday, 13 July 2009 seeking specifics about the complaint against her. No response was received from Mr Woods; * She concluded that there never was a complaint by Mrs Spry; * The treatment of her by Mr Woods caused her added stress. He, at no time, requested from her the document in which she had documented instances of Mrs Spry's aggressive and manipulating behaviour despite the fact that she had made him aware of its existence; * The fact that he had closed the file when she had made him aware that the bullying and harassment was continuing. She could not accept the fact that he characterised Ms Spry's actions as resulting from "interpersonal skills (which) could be interpreted as abrupt"; and * Mr Woods expected her to attend work on days when Mrs Spry was absent. She refused to attend until all her complaints had been fully addressed and resolved. Mr Woods did not sight that complaint until 13 December 2012. 45The Applicant followed that up with another 4-page typewritten letter, dated 29 August 2009 to Ms Windle setting out the specific details of incidents of what, she contended, was unwelcoming, bullying and inappropriate interfering behaviour by Mrs Spry. Those details constituted the fourth complaint against Mrs Spry. 46Following a telephone conversation with the Applicant, Ms Windle forwarded correspondence to her, dated 8 September 2009, advising that her complaint had been referred to Mr John Dunthorne, Assistant Commissioner South West Regional Office for review. 47The Applicant responded to the contents of the telephone conversation the previous day in a letter to Ms Windle dated 9 September 2009 in which she set out what outcomes she expected from the review by Mr Dunthorne. She also expressed disappointment at some of the comments made by Ms Windle during that telephone conversation. 48The Respondent appointed Mr Richard Hoskins to investigate the two formal grievances reported to Ms Windle. Mr Hoskins prepared a statement in which he stated that he had reviewed the documentation provided to him in relation to the grievance. Accompanied by Regional Superintendent Andrews, he attended the Wagga Wagga office on 9 September 2009 and spoke to Mrs Spry about her expectations and responses to the final report prepared by Mr Woods. Mr Hoskins stated that Mrs Spry had assured them that - she had absolutely no issues about resuming work in the same office as Mrs McAuliffe; - she was addressing some managerial deficiencies identified by Mr Woods; - she was also continuing her studies in that area; - she expressed concern regarding the welfare of Mrs McAuliffe; and - she wished Mrs McAuliffe a speedy return to duties. He then proceeded to call Mrs McAuliffe at 12.45 pm on the same day to arrange to meet to hold a similar discussion that afternoon. Mrs McAuliffe declined to meet with them citing previous commitments. 49The Applicant emailed Mr Richard Hoskins on 11 September 2009 regarding the telephone conversation they had on 9 September. She said she had declined to attend on the basis that it was short notice. She indicated her availability to attend a meeting when next he was in Wagga Wagga (either 17 or 18 September 2009) at a time and location of her choosing. She asked for: an outline of the official process which he intended to follow to address and finalise her complaints; an outline of the purpose of the following week's meeting; and the specific details of what was to be discussed. She advised that she had elected to use her son as her support person at that, and any subsequent, meetings. Mr Hoskins advised the Applicant that it was clearly stated in the policy that it was not appropriate to have a family member advocate for her or act as a support person. The Applicant was already aware of the provisions of the policy having previously made the same request to Mr Woods. The Applicant insisted, in an email dated 13 September 2009, that she would meet only the condition that a family member act as her support person. 50Mr Hoskins emailed a response on 15 September 2009 in which he: apologised for not contacting her sooner as he had been in Broken Hill; confirmed his availability to meet on18 September 2009 at any time after 10 am suitable to herself; expressed his preparedness to meet at a venue of her choosing; advised that he would be accompanied by Regional Superintendent Barbara Andrews; advised of his intention to discuss her desired outcome and to formulate an outcome that will be acceptable to all parties; referred her to the Grievance Policy and advised her that her son could not attend as her support person if he did not fit within the restrictions in that policy. 51The Applicant responded to Mr Hoskins in correspondence dated 16 September 2009 confirming a meeting at 11 am on 18 September 2 009 at the RSL Club. She then provided reasons as to why she was not comfortable having anyone from the workplace act as her Support Person. She advised that she had consulted her Doctor earlier that morning and it was her Doctor's advice that she attend the meeting with a family member. She asked that an exception be made for her. 52On 17 September 2009, Mr Hoskins emailed a response to the Applicant in which he advised that he had referred the contents of her email to the Assistant Commissioner and they were taking advice from the Professional Standards Branch concerning the attendance of her son. He proposed that, in the meantime, the meeting scheduled for 18 September 2009 be deferred. The Applicant stated that no further contact was made by Mr Hoskins after that deferment. Mr Hoskins noted that Mrs McAuliffe had resisted any involvement with him unless it was on her terms. She had stated her unwillingness to continue with the process unless it was under her conditions. He concluded that he did not believe that any progression of the matter would occur whilst she placed demands on the process. He recommended that the matter be forwarded to the Professional Standards & Administrative Law Branch for further consideration. 53In correspondence to Treasuring Management Fund (TMF) Employers Mutual Ltd dated 30 September 2009, Dr Pogmore wrote: Ms McAuliffe states she cannot return to work as things are, she needs a workplace separated from the person who is annoying her. 54On 5 November 2009, Mr McMaster visited the Applicant at home and, at the request of Mr Hoskins, explained the following: * that her son's role as a support person was outside policy; * the review could not be continued until she returned to work; * the grievance procedure; and * the medical retirement process. 55The Applicant wrote to Ms Windle on 10 February 2010 seeking an update on the status of her complaints, details of the investigation process and subsequent outcomes. 56The Applicant wrote again to Ms Windle on 29 February 2010 expressing disappointment at the telephone advice the latter had allegedly given her on 22 February 2010 to the effect that nothing will happen until she returns to the workplace and participates in mediation with Mrs Spry, facilitated by Bernadette O'Connor, Regional Executive Director. 57In early to mid-2010, the Applicant went on a cruise despite refusal by senior management to approve her application for extended leave. 58Mr Woods, on 8 April 2010, commented on a number of points made by Brian Davis: 1. I cannot respond in relation to any comments Ms Sosic may or may not have made to Ms McAuliffe; 2. I spoke with Ms McAuliffe (on more than one occasion) in terms of chain of command and operational requirements. Specifically I informed her that I, as A/District Manager was her direct supervisor and as such was responsible for her workplace management including any issues related to work performance. 3. I informed Ms McAuliffe that in terms of operational requirements Ms Spry, as Unit Leader, would be giving her work instructions related to offender management. 4. I believed that I had made it clear to Ms McAuliffe that she was required to work as part of an office team and at times this would mean taking and implementing instructions from Ms Spry. 5. I sat with these two individuals and we went through operational issues related to work instructions from Ms Spry that Ms McAuliffe was required to follow. 6. Ms McAuliffe's preference was to have no interaction with Ms Spry and again I believe that I made it clear that this was not appropriate. 7. The second sentence Ms McAuliffe makes under 2.10 and 3.11 indicates to me that she understood that she was required to interact with Ms Spry in the workplace. 8. Ms McAuliffe's clerical work requirements in relation to Officer Allocation and Order Registration are integral to the achievement of District Office Key Performance Indicators which are timeline-related. If she did not act promptly on Ms Spry's instructions in relation to these the targets would not be met. 59Although the harassment allegations and the consequential absences from work were initially dealt with as a workers' compensation claim, the Applicant received formal advice, on 8 June 2010, in a Section 74 notice from the insurer, TMF, that her workers' compensation claim was rejected. Thereafter, the Applicant continued to claim sick leave for her absences. 60The Respondent determined that an independent medical opinion, concerning the Applicant's fitness to return to work, would be appropriate in view of the fact that: there was conflicting medical evidence as to her fitness; the Applicant had had an extended absence from the workplace; there had occurred substantial changes to the work environment during her absence. 61The Respondent attempted, unsuccessfully, to have the Applicant medically assessed. Work Health Consulting wrote to the Applicant on 5 August 2010 providing details of the appointment made for 26 August 2010 to complete the assessment which had already commenced with a review of referral documents. 62The Applicant was instructed, by letter dated 9 August 2010, to attend an independent medical examination with the Government Medical Officer (GMO). 63On 2 September 2010, the Respondent advised the Applicant that documentation had been forwarded to Work Health Consulting to arrange an assessment for her. A copy of that documentation was also forwarded to her. 64Work Health Consulting wrote to the Applicant on 5 September 2010 advising that an appointment had been scheduled for her with Consultant Psychologist, Julie Berg, and Occupational Physician, Dr Louise Crowle, in Bondi Junction on 21 September 2010. The letter stated that "if you have any other enquiries about your assessment, including travel arrangements, please contact your employer as soon as possible". 65It was not until 27 September 2010 that the Applicant replied to the Respondent confirming receipt of the 2 and 5 September 2010 correspondence and pointing out that "there were no travel arrangements made for her". 66In a telephone conversation initiated by Mr McMaster on 5 October 2010, the Applicant advised that she had not attended the assessment as she did not want to drive to Sydney and, although she had been requested to reschedule the appointment, had not done so. As a result Mr McMaster, true to an undertaking to her, rescheduled the appointment, arranged for return airfares from Wagga to Sydney and taxi fares to take the Applicant to the appointment. Still the Applicant did not attend the rescheduled appointment for assessment. 67The Applicant engaged a firm of Solicitors, Enterprise Law, to pursue her grievances with Commissioner Ron Woodham and to put a settlement proposal to him on her behalf. Enterprise Law wrote to Commissioner Woodham on 2 December 2010 expressing the concern of the Applicant over the likelihood of a termination of her employment, having exhausted all of her leave entitlements accrued over a period of some 32 years of service. Attached to the letter was substantial documentation in support of her complaint. Her Solicitors indicated that the Applicant had intended to work until her 70th birthday, that is 30 April 2011. A substantial monetary offer of settlement was proposed and left open until 16 December 2010: Payment in full of her usual remuneration for the period from 10 August 2009 to 30 April 2011 (retirement date); All accrued annual and long service leave taken since March 2010 re-credited and paid out to her on termination of employment; Resignation to be tendered effective immediately; Written apology from the Respondent to the Applicant; A lump sum payment of $15,000 for the resultant pain, suffering and stress caused by the Respondent's breach of her employment contract; A payment of $5000 for legal fees she had incurred; Execution of a mutually acceptable Deed of Release. 68Mrs McAuliffe wrote to Mr McMaster on 10 January 2011 complaining that she felt bullied, intimidated and emotional during a telephone call from Ms Lobley to her earlier that morning. In conclusion, the Applicant advised: I am happy to go for the medical appointments but only after my complaints have been resolved by the Dept. I would appreciate no further correspondence or communication until that time... 69Ms Meg McNaughton, Enterprise Law, wrote to Ms T Taber, Ministerial Liaison Unit, on 12 January 2011, to complain about Ms Lobley's attitude towards her client during the telephone conversation they had. She explained that the Applicant could not attend the medical appointments because no travel arrangements had been made for her. She pointed out that the Applicant "has always been prepared to attend an independent medical examination arranged by the Department. Her inability to attend work has been due to stress caused initially by the conduct of a co-worker, but subsequently due to the Department's poor handling of, and inaction over, her case". A request was made for a response to be provided in relation to the settlement proposal put to Commissioner Woodham. 70Unsuccessful attempts were made, yet again, on 14 January 2011, to have the Applicant medically assessed. Details of the travel arrangements, booked for her to attend the 20 January 2011 appointment, were forwarded to the Applicant. 71Ms Leonie Swift, Acting Human Resources Manager, wrote to the Applicant on 9 March 2011 advising that her paid leave entitlements were due to expire the following day. She asked the Applicant to complete a request for leave without pay for the period covered by her most recent doctor's certificate (11 March 2011 to 30 April 2011). That was the last medical certificate submitted by the Applicant. The Applicant did not respond. 72On 29 March 2011, correspondence was forwarded by Ms Cathy Thomas, Solicitor, Professional Standards Branch, advising that the Applicant's complaints had been investigated and a conclusion was reached that the Respondent had not acted improperly in relation to the management of her grievances and that the Respondent had complied with its grievance management policy. Once again, the Applicant was invited to return to the workplace and to participate in the mediation process with Mrs Spry in order to resolve the matter. The Applicant disputed the contents of the reply on the following grounds: (i)they did not address the specifics of any of the four grievances she had lodged; (ii)they were not derived in accordance with the Respondent's grievance management guidelines; (iii)they contained serious factual errors; (iv)they were contrary to the supporting evidence provided to the Commissioner by Enterprise Law; and (v)the offer was contrary to the grievance policy guidelines. The Applicant did not respond. The Applicant said she formed the view that the return to work process was totally contrary to official Department policy. In addition, she believed that the investigation findings were flawed. She said both of those reasons prevented her from returning to the workplace. 73Mr Bill Kearney, who was about to commence in the role of Acting Regional Executive Director, South Western Regional Office, Goulburn on 15 August 2011, was contacted by Ms Cathy Thomas, Corrective Services Professional Standards Branch, on or about 12 August 2011, regarding the Applicant. He considered the two options that he was advised were available to him - firstly, to direct the Applicant to return to work or, secondly, to refer her to the GMO for assessment prior to a return to work. He opted for the latter option as the Applicant had been away from the workplace for up to two years and a medical assessment may provide a return to work plan to support her. 74When no response was received from the Applicant in relation to the medical certificate, the Respondent decided that another GMO assessment would be arranged and a delegated officer would provide the Applicant with a lawful direction to attend. Mr Bill Kearney, Acting Regional Executive Director, wrote to the Applicant on 23 August 2011 pointing out that her last medical certificate expired on 30 March 2011 and she had not responded to the reminder sent to her by Ms Swift. He advised that, as her absence was longer than two months and there was no indication of her intention to return to work, he determined that she would be referred to the GMO for an assessment pursuant to the Managing Sick Leave and Other Absences Policy. He directed her to attend the appointment to be advised to her in due course. 75Dr Louise Crowle, Occupational Therapist, wrote to the Applicant on 5 September 2011 advising that her appointment for medical assessment had been rescheduled to 21 September 2011. The Applicant failed to comply with Mr Kearney's direction. 76The Applicant wrote to Mr Bill Kearney, Acting Regional Executive Director, on 27 September 2011, to advise that she would not be able to attend any medical assessment as there has been no response to her grievance claims and she was working with her solicitor preparing legal action against the Respondent. The Applicant declined the invitation to participate in a process aimed at facilitating her medical retirement without her formal grievances being addressed to her satisfaction. She pointed out that, in any event, no travel arrangements had been made to enable her to attend the medical appointment. The Applicant also wrote to Mr McMaster on 27 September 2011 attaching the Application for Leave forms pointing out that she had no idea what she should put on them or whether he still wanted to receive them. She also informed him that she would not be forwarding any more doctors' certificates as "it was costing her too much .. and that CSNSW appeared to be ignoring her grievances". As justification for not attending on the GMO, the Applicant advised that, in addition to the confusion and delay caused by the Respondent in arranging travel, she had received advice from her Solicitor not to have any further contact with the Respondent until a response was received to her grievance claims. 77A disciplinary investigation was authorised in accordance with Part 2.7 of the Public Sector Employment and Management Act 2002. Mr Ian McLean, Deputy Commissioner, on 15 November 2011, authorised Mr David Byrne, General Manager, Investigations, to undertake a disciplinary investigation in relation to an allegation of misconduct made against the Applicant for failure to comply with a lawful direction to attend an appointment with the Government Medical Assessor. Mr McLean wrote to the Applicant on the same day advising of the action he had taken, advising of the procedure he expected would be followed, and setting out a list of the possible disciplinary actions available under the Act: - Caution, Reprimand, Fine, Reduction in Salary, Demotion to a lower graded position; To be allowed to resign, Direction to resign and Dismissal. The correspondence and relevant documents were served on the Applicant on 18 November 2011. The Applicant acknowledged receipt of the letter and asked that any further communication be forwarded to her via her Solicitor, the contact details of whom she provided. 78Futile attempts were made by Mr Berry to contact Ms McNaughton on 25 November 2011 to discuss the investigation into the Applicant. Contact was ultimately made on 2 December 2011 at which time she was made aware of the investigation and she undertook to obtain instructions from the Applicant. She asked if the Applicant's support person could be a family member and he had responded in the affirmative. When no response was received, contact was initiated by the Respondent but was unable to be made with her on 6 December 2011 to ascertain her client's instructions. 79Ms Singer made contact directly with the Applicant on 7 December 2011 on behalf of the Deputy Commissioner. She advised that, as the disciplinary process was an internal, administrative matter, the Respondent, as employer, was entitled to communicate directly with its employees on all issues relevant to the process and would continue to communicate directly with her. She further advised the Applicant that, although she was not precluded from seeking legal advice, direct participation of a legal representative as an advocate was not permitted. 80Mr Berry emailed Ms McNaughton on 12 December 2011 to confirm their discussion during which she had confirmed that the Applicant would not be available to be interviewed until February 2012. He asked Ms McNaughton to obtain a suitable date and time in February for the interview. He indicated his willingness to hold the interview at a location away from the District Office, subject to reasonableness. An extension of time for reporting on the outcome of the investigation was sought by Mr Berry on 12 December 2011 as the investigation was ready to proceed to interview stage and Ms McAuliffe had advised, through her solicitor, that she would not be available until February 2012. 81Mr Berry contacted Ms McNaughton on 23 January 2012 regarding a response to the advice about the formal investigation. Ms McNaughton undertook to obtain instructions and advise him. 82In the absence of any response from, or on behalf of, the Applicant to the inquiry as to whether she wished to participate in the formal investigation to respond to the allegations made against her, Mr Berry wrote to the Applicant on 30 January 2012 scheduling an appointment for 2.30 pm on 9 February 2012 at the District Office. He went on to outline how the interview would be conducted and advised that unless she made contact to discuss the matter or allowed herself to be interviewed, the report on the investigation would be compiled without evidence from her. The section 45 (2) letter was served on the Applicant on the same day together with a copy of the Public Employment Office Procedural Guidelines and a copy of the Corrective Services NSW Record of Interview Guidelines. 83Ms McNaughton telephoned Mr Berry on 31 January 2012 and advised that the Applicant did not wish to participate in an electronically recorded interview. She asked if the allegations and questions could be sent to the Applicant in writing. Mr Berry consented. In response to the request from the Applicant's Solicitor, Mr Berry wrote to the Applicant on 31 January 2012 confirming her instructions to Ms McNaughton. Mr Berry proceeded to set out the allegation and then set out twenty questions he required the Applicant to respond to by 15 February 2012. The Applicant was encouraged to provide any information she wished to have considered. Attempts to serve that documentation on the Applicant on 1 February 2012 were unsuccessful. Her son advised that she was not available and would not be home for another week. The correspondence was eventually served on the Applicant on 9 February 2012. The Applicant's response did not address the questions raised by Mr Berry nor did it present any evidence relating to the allegation. The Applicant merely reiterated her previous complaints/grievances and advised that she wanted to be informed of their outcome prior to answering any allegation. 84The Applicant wrote to Messrs McLean and Berry, basically identical letters, on 24 February 2012 stating that she was committed to cooperating with the investigation subsequently instigated against her but on the stipulation that the investigation occur after her receipt of investigation details and findings in relation to the formal unresolved grievances she had lodged. She explained that she had adopted that position because the Respondent was going down the track of medically retiring her as a direct consequence of: * her being absent from the workplace due to the Respondent's failure to address her formal bullying, harassment and other grievances in accordance with its policies; and * the rejection of her workers' compensation claim as a result of false evidence being provided to the insurer by the Respondent. She advised that, while she was confident of providing a reasonable, documented explanation for her actions, she felt that it was "unreasonable for the Department to ask me to participate in this investigation process before it has presented to me the investigation details and outcomes of previous formal complaints that I have made to the Department..." She refused to co-operate until she was presented with that information. She offered, in the alternative, given the length of her absence from the workplace, to settle the claim on the basis of the offer made on her behalf by her Solicitor. She pointed out that if the Department was inclined to do that, she would be willing to meet with its representatives, at their convenience, and accompanied by a non-legal advocate. No response was received from the Respondent to that alternative settlement offer. 85On 29 February 2012, Mr Berry wrote to Mr David Byrne, General Manager, CSNSW Investigations, regarding the investigation into the allegation that the Applicant failed to comply with a lawful direction given by Mr Kearney on 23 August 2011 to attend an appointment with the Government Medical Assessor. He pointed out that a number of efforts were made through November 2011 and December 2011 to seek a response from the Applicant but none were forthcoming; an extension of time was granted to the Investigator, once again, to allow Mrs McAuliffe to consider her options but, once again, no formal response was forthcoming; and, despite asking for the questions to be put to her in writing by the Investigator, the Applicant had not responded to any of the questions. Mr Berry concluded that, on the totality of the evidence, there was suitable evidence to support a finding that Ms McAuliffe failed to comply with a lawful direction given by Mr Kearney. 86On 10 May 2012, Mr Ian McLean, Deputy Commissioner, wrote to the Applicant and advised that, having considered the Investigation Report, he had formed the opinion that she had engaged in misconduct for failing to comply with the lawful direction of Mr Kearney. A full copy of the report was attached for her benefit. The Deputy Commissioner advised that, of the eight possible disciplinary actions available to him to impose, he was considering the dismissal option. He gave the Applicant the opportunity to provide a written and/or oral submission to him within 14 days. He also gave her an opportunity to have an interview with him if a request was made within five days of receipt of the letter. He advised that she was able to be accompanied by a representative, albeit not a legal practitioner. 87On 2 July 2012, the Applicant, aware that an official request had been made to all permanent custodial and non-custodial staff for expressions of interest, formally applied for a voluntary redundancy package. She let it be known to those officers responsible for the investigation into her alleged misconduct. She did not receive any response to that application. 88On 15 August 2012, the Applicant received a notice of termination by express post from Deputy Commissioner Ian McLean, the decision having been made in the absence of any submissions or additional information from Mrs McAuliffe. 89Conciliation attempts before Bishop C on 19 and 25 September 2012 proved unsuccessful. Standard directions were issued and the matter was set down for hearing over three days. 90The Respondent contended that all actions it had taken in relation to the Applicant had been appropriate in the circumstances and had been in accordance with the Respondent's established policy and procedures; its legislative obligations; the Guidelines provided in "Procedures for Managing non-work related injuries or health conditions, December 2010"; the NSW Personnel Handbook and the Crown Employees (Public Service Conditions of Employment) Award. The Commission was urged to find that the dismissal was not harsh, unreasonable or unjust. The Evidence 91The Applicant provided a written statement in which she contended that from commencement of her employment in 1978 until the lodgement of her first complaint of bullying and harassment in 2003 she had not, in that 25-year service with the Respondent: * been subjected to any form of disciplinary action or received any formal or informal work performance counselling or management; * lodged a formal grievance against any fellow employee nor had a grievance lodged against her by a fellow employee; * lodged a workers' compensation claim. 92The Applicant contended that, during the last 18 months of her employment, she had assumed additional duties without any recompense. She had performed the duties attached to a vacant part-time clerical officer grade ¾ position (17.5 hours). 93The Applicant made the statement that the issues between them had been brewing for some years but "due to my inexperience and self doubt" she thought the problem was hers. At the time of writing to Mrs Spry on 31 May 2005, she realised that the problem was all as a result of Mrs Spry's behaviour and "something needs to be done about it". 94The Applicant pointed out that Mrs Spry had, in the Mediation Contract of 22 June 2005, acknowledged acting in an unprofessional and inappropriate manner towards her and committed to improving her behaviour. 95The Applicant met with Mr Woods on 7 July 2009. She stated that she felt confident enough, after that meeting, to advise that she could resume her duties the following day in the knowledge that her complaints were being investigated and she would receive a response shortly. 96The Applicant contended that her expectations were not realised as Mr Woods failed to manage the complaint in accordance with policy guidelines. 97The Applicant pointed out that both her third and fourth complaints remained unresolved at the time of her dismissal. She also pointed out that she had not received any formal communication about those grievances as was required by the policy guidelines. 98The Applicant contended that the tone, manner and content of Mr Wood's email of 17 August 2009 was "quite confronting". Ms Wass took the Applicant through the contents of that email. The Applicant conceded that the only confronting part of that communication was the fact that he pointed out that she had not contacted him. Yet she would not concede that it was a perfectly rational, reasonable email as suggested by Ms Wass. The Applicant acknowledged that - (i) she sought a formal outcome on the 10th. He provided that response on the 17th. He sent her an email saying he has not heard from her since the 10th although he earlier told her that he would not be in the office and she has not presented for work despite the fact that Ms Spry was not in the office and pointed out that he wanted to talk to her. She confirmed that she felt in no fit stage to return to work in any event even if Ms Spry was not at work. (ii) The email was confronting because he was "accusing" her of not contacting him. (iii) She conceded that she may have been a little hypersensitive but claimed that it was how she was feeling at the time and pointed out that she was on medical leave at the time. She pointed out that she has always been a sensitive person and has undertaken a lot of stress management courses in her own time to try and overcome that aspect of her personality. Nevertheless she would not accept the suggestion that there are some things that upset her that may not upset others. 99The Applicant stated that the Section 74 notice she received from TMF on 2 November 2009 revealed to her that the claim for workers' compensation was rejected based on what she considered to be false information provided to the investigators by representatives of the Respondent. 100The Applicant said that she twice wrote to Ms Windle (10 February and 2 March 2010) by registered post seeking an update on the status of her complaints, details of the investigation process and subsequent outcomes as she had not received any further contact from Mr Hoskins. Ms Windle had not replied either. 101The Applicant stated that she engaged Enterprise Law in view of the fact that the Respondent had failed to provide her with a safe workplace and failed to adequately manage her grievances in accordance with the policy guidelines. 102The Applicant stated that she had "made an extensive effort to correctly participate in the medical process". However, she laid the blame for missing the medical appointments squarely at the feet of the Respondent for its "failure to adequately manage travel arrangements to scheduled appointments". 103The Applicant summarised her position by indicating that, by the time the Respondent had placed her under investigation for misconduct, she had exhausted all the following avenues of appeal available to her without ever receiving any acknowledgement from the Respondent of the legitimacy of her complaints: * Two complaints had been lodged at the local level about Mrs Spry; * Direct communication was made with Mrs Spry pointing out the resultant negative impact on her from the latter's behaviour; * Participated in a formal mediation process with Mrs Spry; * Lodged a third complaint about Mrs Spry at the local level; * Raised the unresolved grievances with the Executive Director-Human Resources; * Written several follow-up letters to the Executive-Director-Human Resources regarding the grievances; and * Raised the unresolved grievances with Commissioner Woodham. 104The Applicant stated that she declined to participate to facilitate the medical retirement process without her formal grievances being addressed to her satisfaction. 105The Applicant contended that Mrs Spry had no formal personnel management or supervisory responsibilities with regard to her position, albeit she did have some limited delegatory responsibilities in relation to their working relationship. She provided a copy of her own position description which indicated that she was to report to the District Manager. 106During cross-examination, the Applicant gave evidence to the following effect: (1) She conceded that one of her responsibilities, in June 2005, was to provide administrative assistance to Mrs Spry who was a Probation and Parole Officer at the time; (2) She had little to do with Mrs Spry between 2005 and 2009 because she shared the clerical tasks for the probation and parole officers with another clerical officer; (3) She had cause for complaint against Mrs Spry during those four years but kept them to herself; (4) By June 2008, Mrs Spry had been promoted to Unit Leader and it was the Applicant's role and responsibility to take direction from her on some matters from time to time; (5) She knew that Mrs Spry lodged a formal complaint against her on 6 July 2009; (6) She lodged a formal complaint about Mrs Spry on 7 July 2009. She contended that Ms Sosic had advised her to lodge a formal complaint earlier in July 2009 and she was still in the process of preparing it when Mrs Spry lodged her complaint; (7) She reluctantly admitted that she did not like the fact that Mrs Spry had been promoted and the fact that it meant there would be more instances in which Mrs Spry would be directing her to do administrative tasks. That was because Mrs Spry had treated her badly in the past; (8) She held the view that, at that time, she reported directly to the Area Manager and would comply with any directions emanating from him; (9) She conceded that Mr Woods told her that Mrs Spry, as Unit Leader, would be giving her work instructions in respect of offender management; (10) She said that she had followed Mrs Spry's instructions to a "T"; (11) The directions provided by Mrs Spry were very often incorrect. For example, Mrs Spry wanted files located in an area that was against policy; (12) She agreed that she had no difficulty in telling Mrs Spry when she disagreed as to how things were to be done in the office and, in that sense, they had an equal power relationship; (13) She took the view, in 2009, that Mrs Spry was, on certain occasions, inappropriately intruding upon her workday; (14) She agreed that it was her preference, in 2009, to have as little interaction as possible with Mrs Spry; (15) She denied that Frank Woods ever had to give her directions to act promptly on Mrs Spry's instructions as her work was up to date the whole time she was at work; (16) If the problem had been removed from the office, then she was sure that her trauma and anxiety and the emotional stress she was under would have improved dramatically and she would have gone back to work as she had no intention of retiring; (17) She believed that there was a conflict of interest as Mr Woods was both her supervisor and the grievance manager. In addition, she was not happy with Mr Woods suggesting mediation, whether or not she was aware that he was in breach of the Policy Guidelines; (18) She would have been willing to go down the path of a second mediation had Mrs Spry not broken the agreement with her to work professionally: firstly, Ms Sosic told her that she was going to tell Mrs Spry that the Applicant was lodging a grievance against her. She returned to her desk and Ms Spry went into Ms Sosic's office. Mrs Spry came out of Ms Sosic's office. The Applicant said that she witnessed a male officer, John Fernando, say something to Mrs Spry that she did not hear. She heard Mrs Spry say a couple of times, "Are you harassing me, laugh, laugh, laugh". Paul Willis, another Officer, was in the vicinity. The Applicant stated that Denise Heydon was not present at the time. Secondly, Mrs Spry had referred to her as "anal retentive" and, thirdly, Mrs Spry had admonished her telling her that her behaviour as inappropriate because she rang the mobile telephone number of an Officer to find out where he was as he had a client waiting at the counter; (19) She was standing talking to Ms Sosic about the issue of cleanliness in the kitchen. Mrs Spry, who was sitting nearby, stood up and, with a dirty coffee cup in her hand, walked past within a metre of her, looked at her and said words to the effect, "I must wash my cup because of these anal retentive people". She insisted that Denise Heydon was not there as far as she knew. The Applicant stated that it was possible but she could not recall that Ms Heydon used the phrase when she described herself because of the way she was stacking meat pies in the pie oven at the football club at the weekend. Ms Wass explained that the phrase was used to describe people who are particularly fastidious and clean. Mrs McAuliffe said she took the literal approach to the phrase - meaning someone who holds things in concerning their bowel - and therefore thought it was offensive for the phrase to be used in an office environment by a Manager; (20) She denied discussing the issue of mediation with Dr Pogmore. Dr Pogmore had to provide information to TMF Employers Mutual who were the Workers' Compensation insurers. In response to the question "What is your expected prognosis?" Dr Pogmore had responded, "Someone has to leave otherwise status quo". She said that if she had made that statement to Dr Pogmore then it would have been made in the form of a flippant remark and she had not meant it. All she ever wanted was for Mrs Spry to be pulled into line so she would stop harassing her. She had not told Dr Pogmore that she wanted to work separately from Mrs Spry; (21) The problem with Mr Woods' email of 17 August 2009 finalising his investigation was the fact that he had provided his formal and final response without interviewing anyone else to corroborate her complaint. She conceded that she had forwarded an email to Mr Woods on 10 August 2009 where she requested the formal outcome of his investigation in writing because she wanted to go up the ladder with her complaint; (22) She agreed that Patrick McMasters, the OH & S Officer, had visited her at home and, in the presence of her son, spent the whole day explaining her rights and obligations to her; (23) She insisted that she was awaiting a response from Richard Hoskins as to whether or not her son could attend as her support person. She claimed that she would probably have gone ahead with the meeting if her son was not allowed to attend as her support person; (24) She was aware that, two years down the track, the Respondent needed to know whether or not she was unwilling or unable to return to work and was aware that she needed to consult the GMO to determine that question; (25) She agreed that appointments were scheduled on three occasions for her to see the GMO. On the first two occasions, transport was not organised for her. On the third occasion, when transportation was arranged, she refused to attend because the Respondent had not responded to any of her grievances: Wass: Q: Absolutely and that's the reason you were refusing to see the GMO because you were using it as leverage to get your grievance dealt with. Weren't you? A: Well you could say that yes. (26) She conceded that, hypothetically, mediation may be appropriate in situations where there is an alleged power imbalance and there is an allegation of bullying and harassment; (27) She also conceded that, despite her view as to whether it was a correct decision or not, it was a matter for the Area Supervisor to consider the facts of the case and arrive at a decision as to whether or not mediation is appropriate; (28) She denied that she was ever offered psychological treatment or offered a skilled mediator as she would have tried that. She agreed that she has not had any on-going therapy since the matter began and has not consulted anyone other than her general practitioner. (29) Dr George's report stated that she had been offered appropriate treatment already but had refused it. Dr George also found that she was fit to return to fulltime work; (30) Ms Sosic was a direct witness to the issue about being "anal retentive". She was also present at the staff meeting when the discussion took place regarding the placement of the files. She had adjourned the meeting and the Applicant had demonstrated to Ms Sosic and Mrs Spry why it was not possible to comply with Ms Spry's instruction; (31) She acknowledged that Mrs Spry had a problem with the time she spent attending the courthouse; and (32) She stated that she had every intention to attend the first two appointments with the GMO but for the travelling arrangements. She did not attend the third appointment because she had received the letter in the interim regarding section 25 which her son explained to her was medical retirement. 107In a statement prepared by Mrs Spry dated 29 September 2009, she advised that she had been employed at the Wagga Wagga office for a total of 18 years and became Team Leader in June 2008. She pointed out that due to the lack of a permanent Area Coordinator/District Manager, she had been in charge of the office on a daily basis on most days. 108Mrs Spry denied categorically the allegations of bullying, harassment and intimidation and the allegations of aggressiveness or manipulative conduct claimed by Mrs McAuliffe pointing out that the root cause of the Applicant's issues with her was the fact that the latter had resented the fact that she had addressed a number of performance issues with her at a local level. 109Mrs Spry went on to address each of the allegations made against her by the Applicant: * She cautioned a male officer (John) pointing out that he could be reported for harassment because he had made an untoward sexist comment to a female officer, Denise Heydon. He immediately apologised to that female officer and she accepted the apology. * It was that same female officer who described herself as anal retentive when relating an incident that occurred in the canteen at the local football club the previous weekend. * She had spoken firmly and directly to the Applicant to inquire as to why a matter regarding files, which had been the subject of lengthy discussion at a staff meeting, was omitted from the minutes she had prepared, particularly when it involved a three month trial. * The garbage bin purchased by the Applicant following resolution at a staff meeting was not suitable in size. She advised the Applicant that a fellow officer, Ray, had offered to return it to the shop. * The office was previously located two blocks from the Court house. Since the relocation occurred, it was taking the Applicant 40 minutes each way to walk the Court house meaning that the Applicant was away from her duties for about 1.5 - 2 hours daily during which time other staff had to cover her position. In addition, the Applicant lodged a Workers' Compensation claim for jarring her back while carrying packages back from the Court house. For that reason, Mrs Spry made the decision that all staff share the responsibility for collection of court documents and were to drive down and back from the court house which took about 7 - 8 minutes. Mrs McAuliffe had declined an invitation to attend a staff meeting to discuss the new procedure. * The assertion that the Applicant was multi tasking was not justified. Mrs Spry pointed out that the bank and newsagency were attended on an irregular basis only and the supermarket was across the road. * It came to her attention that the Applicant, without obtaining certification for the role, was intercepting the section 10 Orders arising from driving offences, registering them and filing them away in her own cabinet when that work was the role of Probation and Parole Officers or Case Managers. She denied barging into an office when the Applicant was with a section 10 offender. * After 2.5 days without computer access because a part had been incorrectly installed, the situation was getting desperate. She found the Applicant in the computer control room trying to assist an IT technician, who was on the telephone, to resolve the problem. Mrs Spry believed that the technicians needed to attend the site themselves to resolve the problem and directed the Applicant accordingly. The Applicant blatantly disregarded the direction. She denied addressing the Applicant unprofessionally. * She does not deliberately eavesdrop on telephone conversations but had expressed to all staff, including the Applicant, that excessive use of the telephones for private calls was unacceptable. * She contended that it was the Applicant who called out across the room asking who a client reports to rather than referring to OIMS for the information. * The Applicant refused to follow the written instructions she had prepared as guidance for clerical staff on Case Administration. * The Applicant had performance management issues which were expected to be ongoing until they were accepted by her and addressed. 110In conclusion, Ms Spry indicated her preparedness to participate in any process that would bring about a resolution of the problem between her and the Applicant, including mediation. 111Mr Francis Parata Woods, Operations Manager, Queanbeyan District Office, provided a statement in the proceedings in which he advised that, between July and September 2009, he was the Acting Area Manager of the Murray-Riverina Cluster. 112Mr Woods pointed out that the Unit leader, Mrs Spry, had an administrative relationship with the Applicant and not a supervisory one. The administration staff took instruction from the Unit leader with respect to the workload, workload distribution and clerical tasks, in other words the Manager was the supervisor and the Unit leader was the task allocator. 113Mr Woods gave evidence that when he arranged to meet with Mrs McAuliffe on 7 July 2009, he held the view that her prolonged absence from work was impacting on other staff. He formed the view that the matter ought to be addressed locally because of the nature of the complaints and the fact that it appeared to be a re-ignition of the previous complaint. 114On about 17 July 2009, Mr Woods considered the letter written by the Applicant to Mrs Spry dated 31 May 2005 and made written comments about the Applicant to the following effect: On going denial of any responsibility. Perception not necessarily reality. Not prepared to let go of the past. Indication of resentment of Sue's progress. Positive statement. She continues to make similar statements however her refusal to be active in resolution process contradicts it. Again an indication that she is not prepared to be part of a solution and will not let go of the past. Contract signed 22.06.05 however both now stating dissatisfaction with it. My observation is that despite Ms McAuliffe's statement she is not willing to move on or compromise. She refuses to participate in further mediation and continues to view herself as a helpless victim. Mr Woods had also considered another letter written by the Applicant to Mrs Spry, the day after both signed the mediation agreement. 115Mr Woods stated in cross-examination that during the period 7 July 2009 when Mrs McAuliffe handed in her grievance to 7 August 2009 when she ceased work, he held meetings with both women together and individually during which he talked about general work performance issues and reporting lines so the office could function properly in his absence. Mr Woods confirmed that he had not provided the Applicant with a copy of the complaint made by Mrs Spry nor had he provided her with any specifics about Mrs Spry's complaint about her. He stated: I didn't show her the document. We discussed aspects of it. I had a plan in mind that I was wanting to go through however Mrs McAuliffe would not make herself available for that process.... I said she wouldn't be part of any process to resolve the dispute. 116Mr Woods noted that Mrs McAuliffe recorded the date of injury as being 7 August 2009 in the 48-hour Notification of Injury Form she submitted. He could not recall any incident taking place on that date. She had also recorded the cause of the injury as being "on going harassment since 2005". 117Mr Woods also confirmed that he had not interviewed, and never intended to interview, the persons named by the Applicant as witnesses. He pointed out that he did accept that the allegations made by the Applicant were serious but he did not think that they were legitimate. He was of the belief that the manner in which he attempted to resolve the matter was appropriate at the time as he was attempting to deal with the issues in context and move forward and not back to 2005 or pre-2005 which was before his time. 118Mr Woods explained that he had attempted to commence to deal with the grievance at the lowest level by facilitating a resolution face-to-face between Mrs Spry and Mrs McAuliffe. He also intended to work through the grievances with them individually and, at the Applicant's pace, on her issues. If that did not work, then he intended to escalate his efforts to the next level in the grievance procedure. During re-examination, he confirmed that he would have considered a request by the Applicant for the appointment of a professional mediator, or facilitator, or someone foreign to the Wagga office, if she had made such a request. 119Mr Woods confirmed that he was aware that the procedure suggested that mediation may not be an appropriate method of resolving disputes involving allegations of harassment and bullying or where intimidation is alleged. However, he was also aware that the procedure also left the decision to the Manager as to the appropriate management tool to utilise in settlement of such matters. During re-examination, he clarified that, in his view, the mediation process was part of the grievance process and he would have ceased the mediation process at any time, if he formed the view that it was inappropriate to continue it. 120He denied any suggestion that there was a power imbalance. They were both competent and mature age women. They had different roles but they needed to work together and had been working together for in excess of 20 years. He categorised it more as a personality conflict or tension between the two. They had participated in a mediation in 2005 which seemed to have worked for four years. He conceded that there was a hierarchical balance differential in that one was engaged as a Grade 1-2 and the other as a Grade 5-6 but they were employed in different roles which made it a chain of command issue and not a power imbalance issue. 121Mr Woods pointed out that, as at 13 July, the Applicant (as confirmed in her statement in the proceedings) was not prepared to participate in the mediation process - she was trying to withdraw from the process even before he held the initial meeting with her and her support person. 122Mr Woods pointed out that Mrs Spry had denied that she used the words attributed to her by the Applicant and denied the other allegations. He stated that he held individual sessions with her mentoring her about appropriate workplace behaviour, about managing the working relationships and, in addition, he ensured that she undertook a departmental training course on bullying and harassment to reinforce the mentoring program he put her through. 123During re-examination, Mr Woods pointed out that it would not have been possible, functionally, to continue what appeared to have been a deal between the Applicant and his predecessor, Ms Sosic, as it would only work during the very short periods when he was in the Wagga office. He pointed out that he was overseeing six district offices in addition to tasks he undertook for the Department and therefore was not at the workplace the whole time. He required, given their functions, that there be some level of communication between those two staff members. 124Mr Woods stated that he began experiencing productivity issues by 24 August as the Applicant had not been replaced and other people were undertaking the tasks she would normally have carried out, particularly data management. The Applicant's refusal to participate in the mediation sessions he had planned and the inability to address the performance issues allegations raised by Mrs Spry were impacting on productivity at the workplace. 125Mr Patrick McMaster, the Regional Injury Management Co-Ordinator, responded, during cross-examination, that he had visited the Applicant at home in his role as Occupational Health and Safety Rehabilitation Co-Ordinator and Workers' Compensation Officer to explore suitable duties with her. However, because of the difficulties experienced in contacting her, he was asked to formally pass on the message from Dick Hoskins and Barbara Andrews (who were to interview her) that the Policy precluded her son from acting in the capacity of her support person. 126Mr McMaster stated that he had provided information to her on the due processes involved but did not provide advice. He had described the various processes to her - the medical retirement process, the grievance process and the Workers' Compensation process. It was necessary to do so because of the conflict caused by the fact that her medical certificate indicated that she was "unfit" while the insurer's medical information was the reverse. He had explained to her that, in order for her to re-engage so that the Department was not seen to be harassing her, they needed her back at work to proceed with the process. He denied that he had described the medical retirement process as a fait accomplit. 127Ms Rita Sosic, Senior Specialist Psychologist, provided a statement dated 30 September 2009, in which she advised that she was acting in the role of Area Manager at the Wagga Wagga District Office from 18 May to 7 July 2009. During that time she was approached by both the Applicant and Mrs Spry individually about concerns they had about the other's performance/behaviour in the workplace. 128Ms Sosic stated that Mrs Spry expressed concern to her at the inadequate performance of the Applicant's tasks as a result of the time taken to walk to and from the court house. Mrs Spry was also concerned that the Applicant was refusing to implement a change in the manner in which case histories were assigned to "resubmit". 129Ms Sosic stated that, for her part, Mrs McAuliffe expressed concern to her at Mrs Spry's "unkind" behaviour towards her. She confided in Ms Sosic that a previous (third) grievance she had submitted had not been resolved to her satisfaction. 130Ms Sosic stated that, on one occasion, Mrs McAuliffe came into her office visibly distressed because Mrs Spry had attempted to direct her during the office meeting over the "resubmit" issue. The Applicant proceeded to leave work early complaining of a headache. 131Ms Sosic stated that, on another occasion, Mrs McAuliffe came into her office, once again visibly distressed, complaining about insensitive remarks allegedly made by Mrs Spry about the Applicant's selection of a rubbish bin for the staff room. She recalled that the Applicant called in the following day and advised that she would not be attending work because she was formulating a written grievance. Ms Sosic pointed out that she had not been asked to approve leave for that purpose. 132It is noted that Ms Sosic did not, at any time in her statement, apportion blame in relation to the two instances reported to her by the Applicant. Her statement was indicative of the fact that, on each occasion, she had attempted to diffuse the situation. Ms Sosic stated that, on both occasions, she had, "listened to Ms McAuliffe's concerns, attempted to reduce her distress, suggested that she initiate a formal grievance action and access Employee Assistance Program Services (EAPs)". THE SUBMISSIONS The submissions of the parties are summarised below. 133Mr McAuliffe submitted, on behalf of the Applicant, that her dismissal was unfair for the following reasons: (1)She was required to be medically assessed with a view to being medically retired because she had been absent from work as a direct consequence of being subjected to unwanted and inappropriate behaviour by the Unit Leader, Mrs Spry. (2)She was dismissed for misconduct when, in reality, she was dismissed for pursuing bullying, harassment and intimidation complaints against Mrs Spry, an employee with managerial responsibility in the District Office. (3)Mr Woods, who was tasked with investigating the Applicant's bullying and harassment complaints, declined to interview other staff to confirm or deny the complaints merely because Mrs Spry denied acting in such a manner albeit Mrs Spry admitted that her behaviour, at times, could be found to be incorrect. (4)She was forced to leave the workplace because she was required by the Respondent to participate in a second mediation with Mrs Spry contrary to its own policy. The Policy states, in at least two sections that mediation may not be appropriate in instances where bullying and harassment are alleged. In a third section, the Policy states that mediation is not appropriate in instances where there is a power imbalance. Mrs Spry was a Unit Leader with managerial responsibility for delegations, supervision and a host of management responsibilities while Mrs McAuliffe was merely an Administrative Assistant. (5)She had previously participated in a mediation with Mrs Spry. She relied on the contents of the Mediation Agreement (wherein Mrs Spry had agreed to demonstrate a number of professional behaviours towards her) as an admission by Mrs Spry that she had directed the described inappropriate behaviours towards her. All of the mandated behavioural changes related to Mrs Spry. Mrs Spry returned to her old behaviour and, sometimes, displayed worse behaviour. 134It was contended on behalf of the Applicant that the position she held reported directly to the District Manager. In fact, in his statement dated 15 September 2010, Mr Nickle acknowledged that he was her immediate supervising officer. 135It was also contended on behalf of the Applicant that the Position Description of Mrs Spry did not provide her with any supervisory, professional development or performance counselling responsibilities in relation to Mrs McAuliffe. 136The Respondent submitted that the relationship between the Applicant and Mrs Spry began to sour in 1975. Contrary to the Applicant's submissions, the Mediation Contract also included three obligations on her to change her conduct and required both women to clarify roles and responsibilities with each other. 137It was pointed out that there were no complaints about Mrs Spry, formal or otherwise, from the Applicant over the following four years during which time Mrs Spry was promoted into a managerial role. 138It was also pointed out that the next issue arose in 2009 when both women lodged formal complaints against one another with the core of the difficulty being that the Applicant was of the view that she reported directly to the Area Manager and not to Mrs Spry. The Respondent explained that, at the time, the Wagga Office had been without a District Manager for some time and Frank Woods, who was acting in that role, had directed the Applicant to take some direction from Mrs Spry. 139The Respondent explained that Mrs Spry formally complained that the Applicant was attempting to undermine her authority. The Applicant, for her part, complained that Mrs Spry was bullying and harassing her. Mr Woods, who conducted the investigation at the time, and in the Respondent's opinion, did so in accordance with its Policy, held the view that mediation was appropriate. As was her right, the Applicant sought a review of that decision. Mr Patrick McMasters visited the Applicant at her home in November 2009 to explain her rights and obligations, particularly in respect of her sick leave because she had been out of the office since August 2009. The Respondent pointed out that the Applicant proceeded to make similar allegations against Mr Woods in a complaint made to Ms Judy Windle leading to a further review being conducted by Mr Richard Hoskins albeit it was never finalised. 140The Respondent's policy precludes family members acting as support persons because it is preferable to have an independent person who is not personally involved and who does not have an emotional attachment particularly to any complainant. Although it was recognised that she was not a member of the union, the Respondent pointed out that the Applicant did have support from the Service albeit she was not comfortable with anyone from the Wagga office. The process of deciding whether the policy would be altered for the Applicant was not finalised because the Respondent was still trying to determine whether the Applicant was fit to return to work because the answer to that question guided any outcome. 141It was pointed out that the Respondent was faced with a situation where the Applicant's general practitioner was saying that she was unfit to return to work. The Applicant was saying that she was "unable to return to work". Yet Dr George, a psychologist, was clearly saying that not only was there no corroboration for the complaints but that the applicant was able to return to work but was unwilling to do so. On receipt of that conflicting information, therefore, the Respondent decided to refer the question as to her fitness to return to work to an independent arbiter to determine. 142The Respondent pointed out that the Applicant had rejected participating in any such process until a finding was made against Mrs Spry of bullying and harassment. Her failure to participate in the process meant that the Respondent would never be able to determine whether the allegations she made against Mrs Spry would be made out. The allegations were certainly not supported by material considered by Messrs Woods, McMasters and Hoskins and Ms Windle. There was no real corroboration and they were vehemently denied by Mrs Spry. 143It was pointed out that it was not unreasonable for a reasonable Employer to want to know, firstly, the full details of the complaint made by the Applicant and, secondly, whether it was appropriate to medically retire the Applicant given that she had not been at work for two years, was about 68 years of age and medical retirement was an option available to the parties to solve the matter. CONSIDERATION Position Description/Roles of both women 144Mr Woods gave evidence that Mrs Spry had an administrative relationship with the Applicant and not a supervisory one. In other words, the Unit Leader was a task allocator and he remained, at the relevant time, the Applicant's supervisor. 145Mrs Spry gave evidence that, owing to the lack of a permanent Area Coordinator/District Manager at Wagga Wagga, she had been in charge of the office on a daily basis on most days. 146The Applicant - * conceded that one of her responsibilities, in June 2005, was to provide administrative assistance to Mrs Spry who was Probation and Parole Officer at that point in time; * acknowledged that it was her role and responsibility to take direction from Mrs Spry on some matters from time to time. Her position entailed "certain secretarial support to the Unit Leader which I give efficiently and effectively at all times"; * reluctantly admitted that she did not like the fact that Mrs Spry had been promoted to Unit Leader as it meant that their interaction would increase with more instances when the latter would be directing her to undertake administrative tasks and it was her preference, at least by 2009, to have as little interaction as possible with Mrs Spry; and * conceded that Mr Woods told her that Mrs Spry, as Unit Leader, would be giving her work instructions in respect of offender management; 147It is noted, from the Applicant's position description, that the primary objective of her role is to provide a range of quality, effective and efficient clerical and administrative support including maintaining a computerised records system, word processing and desk top publishing, and administration of community based programs to support the operations of the Probation and Parole District Officer and Parole Unit. 148It is also noted that the major activities associated with the Applicant's role include the provision of high level administrative and secretarial support to the Manager, Unit Leaders and Supervising Officers at the District Office .... including ... assisting with computer problems and errors. 149In relation to key internal relationships, the Applicant was to look to the District Manager and/or Area Manager for leadership and guidance and provide them with administrative support. In addition, the position description, under the heading "Key relationships", notes that the position needs to liaise with the Unit Leader and team members "regarding PIMS registrations and file movements, and to work as a productive team member". 150Mr Woods made two things clear - he made it clear to Mrs McAuliffe, in meetings with Mrs McAuliffe and Mrs Spry, that the Applicant was required to work as part of an office team and, at times, that would mean taking and implementing instructions from Mrs Spry; and, secondly, the Applicant's work requirements in relation to Officer Allocation and Order Registration were integral to the achievement of District Office Key Performance Indicators which were timeline-related. Therefore, if she did not act promptly on Mrs Spry's instructions, in relation to those matters in particular, the targets would not be met. 151Mrs McAuliffe's preference was to have no interaction with Mrs Spry. Yet a number of the complaints made by Mrs McAuliffe related to allegations of Mrs Spry making her feel isolated and belittled by ignoring her presence. 152I accept the evidence of Mr Woods in regard to the need for work interaction between both women and accept that it would not be appropriate to accede to the Applicant's preference for no interaction between her and Mrs Spry. WorkCover Certificates 153The Respondent's Information Sheet - Sick Leave mandates employees to provide a medical certificate for any sick leave absence that is in excess of two consecutive work days. It further requires employees, likely to be absent from work for an extensive period of time, to forward an application for leave as soon as the medical certificate is received, and progressively while the absence continues. 154It is noted that the Applicant, without approval, took two days' off in order to formulate her third formal grievance. It is further noted that the Applicant, despite being declared by her doctor to be fit to return to work in a workplace separated from Mrs Spry and fit to return to work as long as her supervisor/Area Manager was present, failed to turn up for work on 12 and 13 August 2009 when she was made aware that Mrs Spry would not be at work and also in the week of 17 August 2009 when she was made aware that Mr Woods would be in the office throughout that week. 155Tendered in the proceedings were eighteen WorkCover Certificates issued to the Applicant by Dr Robyn Pogmore, the Applicant's General Practitioner. 156The Certificates demonstrated inconsistencies and other concerns, including backdating and duplication. It is noted: 156.1 Firstly, how the injury occurred was variously described as "Harassment at work" (7 times); "Not quite clear" (3 times); "Harassment" (6 times); "Harassment over several months" and "Stress, Harassment". 156.2 Secondly, the date of the injury was also variously described as "Recent weeks" (3 times); left blank; "10 August 2009"; "Period of time"; "Over several months, culminating in July"; "Over some months"; "Not quite clear" (twice); "Over months"; "Over several months"; "2009" (thrice); "several months in 2009"; and "Events from 2006" (twice). From the sequence of events set out above, there does not appear to be any reason for the injury occurring on 10 August 2009 as the Applicant left the workplace on 7 August 2009 and did not return. 156.3 Thirdly, the diagnosis was also variously described as "Stress" (thrice); left blank, "Stress related condition"; "Anxiety reaction" (twice); "Anxiety problem, stress"; "Ongoing stress and anxiety, resentment that no real effort seems to have been made to address her problem"; "Harassment at work"; "Situational stress"; "Anxiety due to harassment at work"; "Anxiety due to stress"; "Anxiety" (twice); and "anxiety state" (twice). 156.4 Fourthly, in relation to Management Plan, the following was stated: "states that she was unable to work last week.. 1 week off work, until own boss returns" (thrice); "states that she is unable to return to work until 4 September when document is ready"; "stress leave, supportive care and problem resolutions"; "Off work at present, meeting planned 18th Sept."; "Should have clearer delineation of each person's duties, and stick to it". "Off work until problem is sorted out"; "Off work"; "Off work waiting to hear from department"; "Waiting to have matter resolved"; "Awaiting resolution"; Left blank (twice); "Unfit for work"; "Continue leave as there seems to have been no action by authorities on complaint"; "Correction of problem awaited"; and "Resolve workplace issues, await response from Dept re outcome of complaint". It is noted that the statement "should have clearer delineation of each person's duties and stick to it" was made by Dr Pogmore in the WorkCover certificate dated 30 September 2009. Mr Woods had already met with both women and discussed their duties with them. In addition, both women had, on 8 July 2009, signed an undertaking to work in a respectful and professional manner until the matter was resolved. It is also noted that both women had abided by their undertaking for as long as the Applicant remained at the workplace - that is, to 7 August 2009. Although Mrs McAuliffe stated that the harassment from her unit manager did not cease, there was not a skerrick of evidence from the Applicant of any behaviour from Mrs Spry (between 8 July 2009 - 7 August 2009) that triggered her decision to leave on 7 August 2009 and not return to the workplace. 156.5 Fifthly, in the Certificate dated 17 August 2009 (and initialled by the Applicant at 11 am on the same day), the Doctor noted, under the heading "Management Plan", that the Applicant told her that "she was unable to work last week, 1 week off work, until own boss returns". Dr Pogmore declared her as "unfit to work from until own superior officer returns" (sic). The next review date was 25 August 2009. For some inexplicable reason, there was an identical Certificate printed out also on 17 August 2009 but signed by both Dr Pogmore and Mrs McAuliffe on 24 August 2009. Changes were made to the original certificate - under the heading "Management Plan", the words "superior officer" were replaced by the word "boss" and under the heading "Fitness for work", Dr Pogmore wrote " Is unfit to work from until own superior officer returns to from 10th to 25th August 2009" (sic). Again for some inexplicable reason, there was a third identical Certificate printed out on 17 August 2009 but again signed by both Dr Pogmore and Mrs McAuliffe on 24 August 2009. Under the heading "Fitness for Work", Dr Pogmore ran a line through the typed words which have been bolded below for clarity "is unfit to work from until own superior officer returns to from 10th to 25th August 2009" so that the Certificate now reads "unfit to work from 10th to 25th August 2009". It is noted that the Applicant left work on 7 August 2009. She did not consult Dr Pogmore until 17 August 2009 and the Certificate was backdated to 10 August 2009. It is also interesting to note that during that period, Mr Woods advised Mrs McAuliffe that Mrs Spry would not be at work on 12 and 13 August 2009 yet she did not take the opportunity to attend work herself. It is further interesting to note that Mr Woods advised Mrs McAuliffe that he, as her Supervisor/Superior Officer/Boss would be in the office throughout the week of 17 August 2009. Her original certificate for 17 August 2009 indicated that she would attend for work until he returned to the office. Yet, once again, she did not take the opportunity to attend work and the WorkCover certificate was not only back-dated but re-issued to remove the reference to him. 156.6 Dr Pogmore issued two WorkCover Certificates dated 28 October 2009. The first was backdated to cover the two previous weeks when the Applicant was off work without a medical certificate. The second was for the following two weeks. The contents of the first Certificate were more puzzling. In relation to how the injury occurred, the Doctor stated "not quite clear" but it had occurred "over some months" and was diagnosed as "anxiety, stress". In relation to the Management Plan, the Doctor stated: "Off work until problem is sorted out". Interestingly, in addition to backdating the certificate to 12 October 2009, the Doctor wrote in relation to the Applicant's Fitness for Work: "Unfit to work from 12.10.09 - 26.10.09. Nothing seems to have been organised or changed; she is waiting to hear from the department. Mediation needs to take place. [emphasis added] In the second certificate, Dr Pogmore set out the Diagnosis as: "ongoing stress and anxiety, resentment that no real efforts seems to have been made to address her problem". The only Management Plan was for Mrs McAuliffe to be "off work" and she was declared to be "Unfit to work from 28.10.09 - 11.11.09". Mrs McAuliffe denied that she had discussed the issue of mediation with her Doctor. Nevertheless, it is interesting to note that it was a course that was recommended by her own Doctor. 156.7 Once again, Dr Pogmore issued two medical certificates on 25 November 2009. Once again, the first Certificate was backdated to declare the Applicant as unfit for work for the previous fortnight when the Applicant was absent from work without a medical certificate - from 11 November 2009 - 25 November 2009. The second certificate stated "Unfit to work from 25.11.09 - 9.12.09". 156.8 The last WorkCover Certificate received covered the period from 28 February 2011 to 30 April 2011. 157It would appear from the above that the Applicant's general practitioner was pandering to her or humouring her by issuing her with WorkCover Certificates without making an accurate diagnosis, by backdating certificates and not having any Management Plans in relation to the variety of injuries described. Psychiatric Report 158The Applicant was referred by Employers Mutual Limited to Dr Graham George who conducted a confidential psychiatric report on 21 October 2009 and provided an assessment, relevant parts of which are set out below [emphasis added]: .... She felt that the whole situation could be resolved quickly by recognition of the fact that she had been a victim of harassment. She was asked whether she went to see her local doctor at that time and she said that she felt somewhat confused. She said that as time wore on, she 'became more angry about the situation'. She said that she had taken time off and after it extended beyond a three-day period, when she should have had a medical certificate, she went to see her husband's doctor but was not able to get in. She then returned to her original doctor a week later and gained a medical certificate.... ... She readily admitted that she was 'not seriously depressed' at the time when she left work.... Dr Pogmore, her local doctor, suggested that she should see a psychologist for therapy but she said that she has been doing her own stress management and she can 'block out things when necessary'. Ms McAuliffe saw no need for any treatment and she was not taking any medication as a result of her leaving work". Summary and Opinion: ... In general, she believes that she should not be taking direction from the unit manager but she should always be answerable to an area manager. This appears to be a very important point as far as Ms McAuliffe is concerned. If, indeed, she was answerable to the unit manager, then this may go some way to explaining the alleged abruptness of her unit manager at times. However, if she is not officially responsible to a unit manager, as Ms McAuliffe believes, it does appear that she believes that there is a case for harassment on her part. However, there may be a large element of perception associated with account of events. It is interesting to note that there was no support for Ms McAuliffe's case, according to the different statutory declarations which were taken during the factual report that was carried out. The factual report contained in the file material was comprehensive and extensive. Normally in circumstances like this, I believe that for a compensable case to be successful, there should be strong evidence supportive of a person's allegations or complaints. There is a lack of good corroborative support for Ms McAuliffe's position.... Responses: Is the stated injury reasonably attributable to the alleged incident? In the absence of any corroborative reports from work colleagues, I believe that it is hard to justify Ms McAuliffe's allegations of harassment. Comments on whether her employment is a substantial contributing factor to her compensable condition. ... My general conclusion is that I cannot, therefore, accept that Ms McAuliffe's employment with the Department of Corrective Services is a substantial contributing factor to her leaving work when she did. I believe that she certainly has a strong perception that her unit manager has related to her in an abrupt manner and that, perhaps her comments may have been ill-considered at times. I believe that this is Ms McAuliffe's perception. However, again, the details in the factual report do not corroborate this. It appears that the circumstances of Ms McAuliffe's injury have been somewhat cumulative over time and have a background dating back to 1991. ...Obviously, she has a sensitive nature and a very strong sense of fairness, so that she may respond to small slights in a distressing way, whereas perhaps others may not have acted similarly. Are there any other contributing factors to Ms McAuliffe's condition? She is waiting for an outcome of her situation but it does appear that she is engaged in some industrial/medico-legal situation which is now somewhat beyond her control. What is Ms McAuliffe's current capacity for work? As far as her fitness for work is concerned, I believe that she is fit to return to full-time work. Undoubtedly, being placed in a different situation would be advisable because without some resolution of this situation between her and her unit manager, it would be very difficult for her to return to her previous situation. I believe that her prognosis is guarded, simply because it would be very difficult for her to return to work unless she is prepared to work with this person and there is considerable compromise on both sides. Treatment In general terms, I believe that a senior clinical psychologist could help modify her attitudes to some degree and provide sufficient support for her to cope effectively in the workplace in the future. She has refused help to date. I also believe that a skilled mediator in the workplace could perhaps resolve the situation as there does appear to be a certain degree of goodwill on both sides. Ms McAuliffe has chosen not to have any ongoing therapy. Ms McAuliffe believes that her situation is one which could be resolved if she had the right solution, which would be an admission of harassment on her unit manager's part. She has been offered appropriate treatment already but refused it. 159Mrs McAuliffe admitted to Dr George that she was "not seriously depressed" at the time when she left work. 160It was noted by Dr George that the Applicant was offered a Management Plan by Dr Pogmore in that it was suggested to her that she consult a psychologist for therapy. The Applicant had declined the offer pointing out that she was doing her own stress management and can "block out things when necessary". It is noted that the diagnosis in each of the WorkCover Certificates referred to in paragraph 153.3 above (throughout the period 17 August 2009 - 28 February 2011) all refer to some form of "stress". It is obvious that her self managed treatment was not working for her. Nevertheless, she refused appropriate treatment whenever it was offered, including assistance from the Respondent's Employee Assistance Program which is a confidential service. Position Description 161The Applicant referred to the position description of Mrs Spry pointing out that it did not provide her with any responsibilities over her. Reference has been made above to the Applicant's Job Description which has more relevance. Reference has also been made to the admissions made by the Applicant during cross-examination and the evidence of Mr Woods. I accept that Mrs Spry had an administrative relationship with Mrs McAuliffe and not a supervisory one. The Grievances 162Despite the opinion of the Applicant to the contrary, it is not considered that the Mediation Contract signed by both the Applicant and Sue Spry contained any admissions by either of the participants. It appears that all of the issues raised by the Applicant in [7] above were addressed in the Mediation Contract which set out obligations on both participants as the way ahead for the future. 163I do not intend to go through each and every grievance as they are detailed in the body of the decision. The Applicant did not produce any witnesses to the complaints she made although they could have been summoned to attend the proceedings. 164Mrs Spry was called by the Respondent to give evidence. Despite urgings by the Commission as currently constituted, to go through the Respondent's witness statements thoroughly and prepare for cross-examination, Mr McAuliffe failed to take advantage of the opportunity to cross-examine Mrs Spry and Mr Woods on the key issues that formed the Applicant's grievances. On that basis, therefore, the evidence of both Mrs Spry and Mr Woods stand uncontradicted. In other words, the explanations provided by Mrs Spry for each of the allegations raised by the Applicant stand without contradiction. 165The Applicant, despite contending that the first and second grievances she submitted in 2005 had been settled to her satisfaction, had regurgitated each instance of what she perceived as harassment by Mrs Spry so that her collection of grievances dated back from 1991 onwards. 166I agree with the finding of Dr George that the instances of bullying and harassment she has complained of grievances are drawn from Ms McAuliffe's perception of what occurred and there is no factual corroborating evidence to confirm her allegations. For example, Mrs McAuliffe was most upset at being referred to as "anal retentive". First and foremost that kind of phrase has no place in a work environment and certainly is not befitting a Unit Leader. Having said that, however, it became clear, during cross-examination of the Applicant, that she was not familiar with the phrase and had taken a literal approach to it. In any event, having considered all of the evidence, it is not clear in what context the phrase was said. Mrs McAuliffe, in all of her complaints including those dating back to when the complaint was first made, referred to Mrs Spry looking at her and saying words to the effect "these anal retentive people". Mrs Spry explained that another employee, Denise Heydon, had used that phrase to describe herself when she was telling her fellow employees about the way she was stacking meat pies in the pie oven at the football over the previous weekend. It was only during cross-examination of Mrs McAuliffe that she stated, for the first time, that Mrs Spry said words to the effect, "I must wash my cup because of these anal retentive people". There was no evidence from Ms Sosic, who was standing with the Applicant, or any other witness corroborating that latter version. 167Another example is when Mrs McAuliffe refused to follow instructions in relation to the filing of files containing material on people who had breached court orders. She refused to comply with Mrs Spry's directive as to where the files should be placed because the files were always put in a "resubmit" drawer and would be lost in any other system. I accept that Mrs McAuliffe has had lengthy experience in administration and, from all accounts, was excellent at her job and was, probably, right in her opinion. I accept that the Applicant would be entitled to offer counsel in that regard. Nevertheless, as Unit Leader, Mrs Spry had the authority to make the decision that she did and whether that decision was the right or wrong one to make fell squarely on her shoulders. Bullying and Harassment Policy 168The Respondent's Staff Administration - Managing Work-Related Bullying and Harassment Policy recognises that employees have a right to work in an environment free from bullying and harassment and have a responsibility to treat each other in a way that will not cause distress. It is noted that the Policy provides that when harassment or bullying is identified, the senior manager must deal with it immediately in an impartial, fair and confidential manner [emphasis added]. 169Although the Applicant stated that the first and second grievances had been resolved to her satisfaction, I am critical of the way in which the second grievance was managed which was in complete contrast to the manner in which Mr Woods attempted to deal with the grievance when it was placed squarely in his lap. 170Mr Mike Neville, District Manager, Community Offender Services wrote to Mr McMaster setting out his own observations in relation to the "longstanding battle between the two staff...mainly over things of a clerical nature". He pointed the finger at Mrs Spry as the perpetrator. He opined that Mrs McAuliffe, as a clerical officer "knew her stuff" and Mrs Spry's "management of the clerical side of thins...is very questionable". He agreed with the Applicant about the filing system that Mrs Spry wanted to introduce and stated that he had to step in at the time to quash a great deal of resentment over that issue. On another occasion, he received a call from a technician to get permission for the Applicant to go up to the Communications room to type commands into the server as directed by the technician over the telephone because Mrs Spry had banned her from going there. Mr Neville was extremely complimentary of the Applicant and understanding of her plight. Mr Neville advised that he had encouraged Mrs McAuliffe not to go on leave and advised that there were reasonable supports within the Department to assist her. 171Given the nature of the complaints - trivial if they are to be treated individually, but awesome when accumulated in the manner described above, I believe that Mr Woods had not option but to attempt to deal with them in the manner that he did, confidentially between the parties - one of whom was a valued employee of in excess of 31 years, well liked and respected for her clerical expertise and the employee of similar long standing and in the role of Unit Leader. Given that it was a small office, given that the alleged witnesses would have to work in close proximity with both women and, as indicated earlier, the trivial nature of each matter if taken individually, it would have been in the interest of all to deal with the matter confidentially as stipulated in the Policy. 172I approve of his first step which was to obtain a truce so that both women could work together while the investigation was progressing. The evidence indicates that undertaking worked for a period of about four weeks before the Applicant chose to leave the workplace. There was no evidence of any action on the part of Mrs Spry, or indeed anyone else, that would have caused the Applicant's departure on 7 August 2009. Staff Administration - Grievance Management Policy and Guidelines 173The Staff Administration - Grievance Management Policy and Guidelines notes that the principles of natural justice state, in part, that, - * a person who is he subject of a complaint must know all the allegations made in relation to his or her behaviour and, except in the circumstances listed below, the name of the person or people making the complaint. * a person who is the subject of a complaint must have a full opportunity to respond to the complaint. * all relevant submissions and evidence must be considered. 174The Policy sets out time limits for the different stages of the grievance procedure with the aim being for all grievances to be sorted out within eight weeks at the latest. 175It was the responsibility of the Grievance Manager to review the complaint and inform the parties of how the grievance will be managed which may include: giving a caution conciliation mediation management decision The Policy recognises that mediation may not be appropriate as a management method if the complaint involves allegations of bullying or harassment or where there is a power imbalance between the parties. 176The Policy stresses, on a number of occasions, the need to deal with the grievances as soon as they arise to avoid possible escalation and to deal with them in such a manner as to respect the confidentiality of the grievance management process and to limit discussion to the parties involved, the grievance manager and others with a right to know. 177The Policy defines a "Support Person" as being a person: selected by each party to a grievance to support and advise him or her during the grievance management process. Other than mediation sessions, this person may be present during, but must not participate in, grievance management meetings. The role of support person will be restricted to a union representative, a departmental staff member .... In other words, a family member may not act in that role. 178The Policy provides that a grievance is considered concluded when causes related to the grievance have been removed and arrangements made, as far as possible, to repair any damage and distress to the parties involved. It recognises that it is not always possible and, therefore, any management decision will stand unless it is decided otherwise by the next closest in line to the decision-maker or the Executive Director Human Resources upon written request for a review by either of the parties within ten working days of receipt of the disputed outcome. 179The Policy provides that the only grounds for review of a manager's decision are that the decision is considered to be unfair or it is against Government/departmental policy. 180Finally, the Policy requires employees with a grievance to attempt to resolve the difference using appropriate channels and requires Supervisors and Managers to create an environment in which differences are discussed and resolved promptly and with minimum disruption to the work of the Department. 181Mr Woods arranged for both employees to arrive at an undertaking about working in a respectful and professional manner until the matter was resolved. The part of the Policy that requires minimum disruption to the work of the Department was therefore addressed. 182Mr Woods then proceeded to meet with each employee individually to identify a support person. The Applicant nominated Mr Alex Honeykats as her support person and, in fact, Mr Honeykats, attended two subsequent meetings before she decided that she would not settle for anyone but a family member. The Policy specifically excludes a family member from acting in that role and it was unreasonable for Mrs McAuliffe to expect an exception to be made for her. 183Mrs McAuliffe quite rightly sought a copy of the grievance lodged against her by Mrs Spry. She repeated that request on a number of occasions and was ignored. The Policy is quite clear in that she was entitled to receive a copy. 184Mr Woods gave evidence that he did not intend to withhold it from her but intended to provide it to her at a face to face meeting so that its contents can be discussed at that meeting. Given the fact that the Applicant was absent from work at that time, given that her condition was described in a variety of ways by her treating doctor as being stress related, it was probably wise of Mr Woods to have considered the mental condition of the Applicant and the fact that the Applicant may have agitated over its contents at home, further adding to her stress in the time lapse between getting the complaint against her and when they next met, particularly given the conditions set by the Applicant for any meeting with management. 185The Policy states quite clearly that mediation may not be appropriate but leaves the decision in he hands of Grievance Manager. When one has a look at the options available, it is clear that mediation was the only sensible solution in the circumstances: * Caution. Who does one give a caution to? Both employees had lodged legitimate grievances one against the other. If both received cautions, would that have resolved the problem. I think not. * Conciliation or Mediation. The Applicant would have the same problems for both. She did not want to sit with Mrs Spry and mediate or conciliate. She wanted to know what management was going to do to Mrs Spry before she would discuss the latter's grievances against her. That was clearly not acceptable. It is noted that mediation was also proposed by both Dr Pogmore and Dr George. * Management Decision. Mrs McAuliffe's preferred that course. As recognised by her doctor, and evidenced by her actions between 2009 - 2011 and by the evidence before this Commission, the only right solution as far as the Applicant was concerned would involve an admission of harassment by Mrs Spry and subsequent action by the Respondent. 186I agree with Dr George that one fact is blatantly obvious - the only thing that will appease Ms McAuliffe is an admission of harassment by Mrs Spry and a recognition by the Respondent that she has been the victim of such harassment. Such a solution would not have achieved the Policy requirement for a conclusion that would remove the grievance and repair any damage and distress to the parties involved. 187Mrs Spry also had issues with the Applicant which needed to be addressed. For example, Mrs Spry complained that she felt that the Applicant was, since the 2005 mediation, keeping notes of her every action. It is noted that Mrs Spry's concerns about the Applicant were confirmed in that Mrs McAuliffe noted that "I have been documenting instances of Susan Spry's aggressive and manipulating behaviour and I am currently finalising a document which will be available to you upon request". Employee Health Reviews Policy and Guidelines 188The Employee Health Reviews Policy and Guidelines deem it appropriate, in consultation with the employee, for the Respondent to seek medical advice and guidance from an approved medical assessor in situations where the health of an employee may impede their ability to undertake the inherent requirements and job demands of their substantive position, or where the health of an employee may endanger or seriously affect their health and safety and the safety of other employees or the general public. The Respondent is obliged to medically retire any employee who is declared by the approved medical assessor to be permanently unfit for the above. 189The following exchange took place regarding the requirement to attend the GMO consultation: Wass: You gave some evidence that you had been more than once asked to attend the GMO. The first time you were asked you, as I understand it, did not go because no appropriate transport had been arranged? A: Exactly. Q Did you say at that time that you had no intention of going to the GMO? A: No I had every intention of going to the GMO. Q: What changed between the first time and the second time that you were asked? A: The second time I was asked was a similar thing happened. I hadn't been given transport arrangements..... Q: So I take it the first and second time you were asked to go to the MO you had no difficulty other than a practical one of.. A: I wanted to get back to work. Q: .... what happened between the second and the third time, the final time that you were asked, that resulted in the change of heart? A: .... the first line of the letter it said I ... had to go in accordance with section 25, which I understood meant that I would be medically retired. Q: Other than to consult with your son, did you make any enquiry of anyone as to what the effect of a visit to the GMO might mean? A: No. Q: And you still had retained your lawyers at that time? A: No. Q: They had in the past had they not drafted correspondence for you refusing to go to the GMO? I just read it to you after lunch. A: What did you say again please? Q: You had had letters drafted on your behalf by your lawyers refusing to go the GMO until your complaint had been dealt with.... When did you get rid of those lawyers? A: I didn't get rid of them ... it was just because I'm a clerical officer I could not afford to pay her. 190The evidence was clear. The Applicant had no intention of attending any appointment with the GMO despite having been off work for a considerable period of time. The fact that no travel arrangements had been made on the first two occasions was opportune. 191It is noted that Mike Neville, District Manager, forwarded [undated] correspondence to Patrick McMasters in which he commented on the situation between both employees from his own perspective, albeit it was some time ago: * It was his view that the longstanding battle between the two staff members, perpetrated by Ms Spry over things of a clerical nature, was ill-conceived as the Applicant "knew her stuff" and Ms Spry's management of the clerical side of things was very questionable. * He had to step in and quash a great deal of resentment (minuted in staff meeting minutes on two occasions in 2008) over Ms Spry's determination to set up a filing system that did not suit the office. He personally observed that whenever the Applicant stepped in to correct clerical procedures or case history files and orders, it would be resented by Ms Spry who would then belittle her. 192It is also noted that Mr Nickle, who, as District Manager/Area Manager at Wagga Wagga from 1998 until early 2008, was the Applicant's immediate supervising officer, provided the Applicant with a glowing reference dated 15 September 2010 in which he stated: ... Mrs McAuliffe was highly regarded by her colleagues both for her work and for the very constructive contribution she made to team spirit and morale in the District Office. In the one instance where a degree of negativity was present, I would judge this, for the most part, to be the outcome of a lack of sensitivity and an overweening sense of self-importance on t he part of another staff member. 193Mrs McAuliffe presented as a very mature, respectable woman with, I concur, a sensitive nature, and a very strong sense of fairness. It is those traits that have caused her to react in the distressing manner that she did to what she perceived to be slights from Mrs Spry. I do not believe that there was a power imbalance between the two employees. However, I do believe that it was a very sensitive person pitted against, perhaps, an insensitive person. 194It is a great shame that Mrs McAuliffe did not allow Mr Woods to proceed down the path he had charted. He had made good progress with Ms Spry in relation to the Applicant's grievances. He had been extremely sensitive to Mrs McAuliffe's needs and state of mind and had indicated, on a number of occasions, his willingness to move at a pace dictated by herself. 195Unfortunately, Mrs McAuliffe seemed to follow advice that was not helpful to her case. I agree that she seemed to have been engaged in some industrial/medico-legal situation which spun out beyond her control. ORDERS 196In all of the above circumstances, a positive finding cannot be made that the decision to terminate the Applicant's employment was in any way harsh, unjust or unreasonable. 197The proceedings in Matter No IRC 938 of 2012 are hereby dismissed. I Tabbaa AM COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2013